Williams vs. National Western Life Insurance
- - LC - Barney Thomas Williams vs. Victor S. Pantaleoni - 17CV03462
- - LC - Williams v. National Western Life Insurance Co.
- 2021 0611 - LC - Williams v. National Western Life Insurance, C090436, (Super. Ct. No. 17CV03462 - APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions. - 38p
- 2021 0611 (Date Filed) - LC - Williams v. National Western Life Insurance, APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions. - 38p
- APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions.
- National Western Life Insurance Company (NWL) appeals from a jury verdict
holding the company liable for negligence and elder abuse arising from an NWL annuity sold to Barney Thomas Williams by Victor Pantaleoni, an independent agent.
- 2022 0304 (Date Filed) - LC - Williams v. National Western Life Insurance - Opinion on Transfer, Appeals Court - 52p
- 2022 1102 - LC - Williams v Western Life - Judge Candela – Law & Motion – Wednesday, November 2, 2022 @ 9:00 AM - TENTATIVE RULINGS - 2p
- 2021 0809 - LC - Amicus Brief - LICAC - Re: Williams v. National Western Life Insurance Company; Case NO. S269978 Amicus Letter in Support Of Petition for Review, Life Insurance Consumer Advocacy Center - 3p
- 2021 0809 - LC - Amicus Brief - PIABA - Re: Williams v. National Western Life Insurance Co., Public Investors Advocate Bar Association - 8p
- 2021 1021 - LC - Amicus Brief – LICAC - Re: Williams v. National Western Life Insurance Co., Application Of LICAC For Leave To File Amicus Curiae Brief In Support Of Barney Williams; Statement Of Interest, Life Insurance Consumer Advocacy Center - 17p
- 2022 0307 - LC - LICAC - California Court of Appeal Decision in Williams v. National Western Life Is A Big Win for Consumers - [link]
- 2022 0718 - LC - Amicus Brief - PIABA - Re: Williams v. National Western Life Insurance Co., - in Opposition to Request for Depublication of Williams v. Nat'l Western Life Ins. Co, Public Investors Advocate Bar Association - 4p
- 2022 1128 - LICAC - California Supreme Court Denies Review and Depublishes Opinion in Williams v. National Western Life - [link]
- But litigants will no longer be able to cite the Williams decision, so policyholders will have to reestablish that proposition in a future case.
- 2021 0611 - LC - Williams v. National Western Life Insurance, C090436, (Super. Ct. No. 17CV03462 - APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions. - 38p
- Jury Trial
- D. Jury Verdicts and Judgment
- E. Post-trial Proceedings
- (p28) - NWL filed motions for judgment notwithstanding the verdict and for a new trial, arguing, inter alia, that Pantaleoni was not NWL’s agent in the transactions with Williams.
- The trial court denied the motions.
- Broker v Agent
- Since Pantaleoni was an independent contractor and agent for Williams in the purchase of an annuity, NWL had no duty to supervise Pantaleoni.
- Bordenave, Williams’ expert witness on the standard of care for sales of annuities to seniors, testified, as he acknowledged, that NWL’s supervision of Pantaleoni was insufficient and an insurance company has a duty to monitor any appointed agent.7
- 7 If a duty to supervise and monitor independent agents existed, with some 20,000 agents, the expense to NWL would likely impact the cost of annuities offered.
- Moreover, no California case has found that the statute creates a private right of action and multiple federal courts in California concluded it does not.
- [declining to take judicial notice of the DOI’s opinion on Ins. Code, § 785 and address on appeal whether the statute creates a private cause of action].)
- Williams turns to the suitability requirements of Insurance Code section 10509.914, subdivision (c), for sales of annuities...
- Moreover, NWL’s source of suitability information was the suitability questionnaire that accompanied the application.
- Thus, the principle applies that “ ‘an insurer has the right to rely on the insured’s answers to questions in the insurance application without verifying their accuracy.’
- However, NWL had no duty to conduct a follow-up investigation to determine if there were facts that did not appear, or were different from facts that did appear, on the suitability questionnaire. (LA Sound, supra, 156 Cal.App.4th at p. 1271; Mitchell, supra, 127 Cal.App.4th at p. 477.)
- The suitability statutes for sales of annuities do not furnish a duty of care for purposes of a negligence claim.
- Lastly, Williams argues that NWL breached the duty to investigate his complaint about Pantaleoni.8
- Williams does not cite any authority where an insurance company was held liable in a negligence for breach of the duty of care in failing to investigate an insured’s complaint about an independent agent.
- This allegation sounds in negligent supervision and, as discussed, NWL had no duty to supervise and monitor Pantaleoni for misconduct.
- 8 Williams contends that NWL admitted it had a duty to investigate his complaint.
However, Williams concedes that the record discloses only that legal counsel for NWL made a statement to that effect in opening argument. “It is elementary statements of the attorneys are not evidence.” (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 843; Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1269, fn. 1[“Of course, the statement of an attorney is not evidence”].)
- Further, Williams bases this negligence theory not on a principle of law but on policies NWL adopted as the result of a settlement agreement in 2010 with the California Insurance Commissioner entered into in conjunction with a class action settlement agreement. In the settlement agreement, the commissioner’s allegations against NWL were denied in detail and the parties agreed the settlement did not constitute an admission of the truth of any allegation or any fault or liability on the part of NWL. [Bonk-?]
- In agreeing to sales and marketing reforms, including complaint referral practices reforms, NWL did not admit its current practices were in any way improper or unlawful under any applicable law. [Bonk: Connect: Prudential 199x]
- [Bonk: Principle-Agent]
- Having failed to establish a legal duty of care on the part of NWL, Williams cannot maintain an action for negligence or vicarious liability against NWL and the
- Elder Abuse
- NWL contends it did not financially abuse Williams within the meaning of the elder abuse statute.
- Williams counters that substantial evidence supports the jury’s finding that NWL was directly liable to Williams for financial abuse.
- The evidence of elder financial abuse Williams presented does not fall within the scope of the statute.
- To conclude otherwise would transform every dispute between a person over 65 regarding the conduct of an independent agent into an elder abuse action against an insurer.
- def....Elder Abuse
- In Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, the court held it was not “wrongful use” of property for a commercial lender to lend money, take collateral and foreclose on collateral when a debt is not paid. (Id. at p. 528.) “[A] lender does not engage in financial abuse of an elder by properly exercising its rights under a contract, even though that conduct is financially disadvantageous to an elder.” (Paslay, supra, 248 Cal.App.4th at p. 657, citing Stebley, supra, at pp. 527-528.)
- By the same token, it is not wrongful use for an insurance company to accept the premium for an annuity, issue the annuity, and deduct the surrender charge specified in the terms of the annuity policy when the annuitant demands early surrender. There was no evidence that NWL, in accepting a premium and issuing an annuity or processing a surrender request and assessing a surrender charge, knew or should have known of Pantaleoni’s fraudulent conduct, i.e., that Pantaleoni had deceived Williams into applying for the first annuity when he only wanted a revision to a living trust and had Williams sign a blank document to use to forge letter of instruction directing NWL to reissue the second annuity after Williams cancelled the first one. For the same reasons, this evidence did not show wrongful use by NWL within the meaning of the elder abuse statute. The elder abuse statute does not impose a duty to investigate even by a financial institution mandated to report suspected elder financial abuse to local law enforcement or adult protective services. (Welf. & Inst. Code, § 15630.1, subd.
- For the same reasons, this evidence did not show wrongful use by NWL within the meaning of the elder abuse statute. The elder abuse statute does not impose a duty to investigate even by a financial institution mandated to report suspected elder financial abuse to local law enforcement or adult protective services. (Welf. & Inst. Code, § 15630.1, subd. (e)(1)
- [“The mandated reporter of suspected financial abuse of an elder for dependent adult is not required to investigate any accusations”].) Much less does an insurance company, which is not a mandated reporter, have to duty investigate under the statute.
- Assuming NWL had monitored Pantaleoni as Williams suggested, there was no evidence showing that NWL knew or should have known of Pantaleoni’s fraud. (Das, supra, 186 Cal.App.4th at p. 745.) For example,...
- C. Motion for Judgment Notwithstanding the Verdict
- NWL raised agency and wrongful use issues as grounds for judgment notwithstanding the verdict. We conclude the trial court should have granted the motion for judgment notwithstanding the verdict.
- Motion for judgment notwithstanding the verdict.
- “ ‘The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict is rendered without foundation.’
- Denial of a motion for judgment notwithstanding the verdict rests largely in the discretion of the trial judge. (Sukoff, supra, at p. 744.) However, when the evidence fails to support an essential element of a cause of action, the judgment cannot stand. (Ibid.) Here, as discussed, the record failed to support the duty of care element of Williams’ negligence claim and wrongful use required to support his elder financial abuse claim.
- Therefore, we will reverse the judgment and direct the trial court to enter judgment in favor of NWL.
- Because we reverse the judgment in favor of Williams, the remaining issues NWL raised on appeal, and the issues raised in Williams’ cross-appeal, are moot.
- DISPOSITION: The judgment is reversed, and the case remanded to the trial court with directions to enter judgment in favor of NWL. NWL shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
- 2021 0809 - LC - Amicus Brief - PIABA - Public Investors Advocate Bar Association Williams v. National Western Life Insurance Co., Supreme Court Case No. S269978; Appellate Court Case No. C090436; Amicus Letter of the Public Investors Advocate Bar Association in Support of Petition for Review - 8p
- The Williams decision raises two issues of critical importance to investors.
- The first is whether insurance carriers may be held to be responsible for the acts of independent producers who transact business on behalf of multiple carriers.
- The second is whether there is a private right of action under Cal. Insurance Code § 785, which imposes a duty of good faith and fair dealing upon insurers and insurance agents to prospective customers who are age 65 or older.
- Our members have seen an explosion of cases in recent years in which independent insurance agents who market themselves as financial advisors and/or retirement planners recommend to prospective clients that they invest their retirement monies into costly and unsuitable insurance products which are not regulated as securities, including indexed annuities and indexed universal life insurance policies.
- Insurance agents frequently recommend that prospective customers liquidate or exchange their existing IRA and/or 401(k) investments and use the proceeds to purchase indexed life insurance products.
- 2022 0718 - LC - Amicus - PIABA - Public Investors Advocate Bar Association - in Opposition to Request for Depublication of Williams v. Nat'l Western Life Ins. Co - 4p
- Williams v. National Western Life Insurance Co., Case No. C090436, published 5/10/22 at 78 Cal. App.5th 500.
- The Public Investors Advocate Bar Association ("PIABA") submits this letter as amicus curiae in opposition to National Western Life Insurance Company's ("NWL") request for depublication of the opinion in the above-referenced matter, Williams v. National Western Life Insurance Co., Case No. C090436, published 5/10/22 at 78 Cal. App.5th 500. ("Williams Opinion").
- ⇒ In summary, the Williams Opinion makes the important clarification that life insurers are vicariously liable for the wrongdoing of their independent non-exclusive life insurance agents.
- 2021 0611 (Date Filed) - LC - Williams v. National Western Life Insurance, APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions. - 38p
- APPEAL from a judgment of the Superior Court of Butte County, Tamara L. Mosbarger, Judge. Reversed with directions.
- National Western Life Insurance Company (NWL) appeals from a jury verdict holding the company liable for negligence and elder abuse arising from an NWL annuity sold to Barney Thomas Williams by Victor Pantaleoni, an independent agent.
- 2022 0304 (Date Filed) - LC - Williams v. National Western Life Insurance - Opinion on Transfer, Appeals Court - 52p
- (p2) - National Western Life Insurance Company (NWL) appeals from a jury verdict holding the company liable for negligence and elder abuse arising from an NWL annuity sold to Barney Thomas Williams by Victor Pantaleoni.
- (p2) - In our prior opinion in we reversed the judgment, concluding that Pantaleoni was an independent agent who sold annuities for multiple insurance companies and had no authority to bind NWL.
- We determined that Pantaleoni was an agent for Williams, not NWL.
- (p3) - Williams petitioned the California Supreme Court for review,1 which granted review and on September 22, 2021, issued an order stating in relevant part: “The matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its decision and reconsider its finding that Pantaleoni did not have an agency relationship with National Western Life Insurance Company in light of Insurance Code sections 32, ...
- (p4) - NWL in its supplemental brief contends that it cannot be held liable for Pantaleoni’s conduct in violation of the rules governing its agents.
- We will affirm the judgment finding NWL liable for negligence and financial elder abuse.
- However, punitive damages assessed against NWL are reversed.
- We find no abuse of discretion in the trial court’s calculation of the attorney fee award but remand the case for the court to reconsider the award in light of the reversal of punitive damages
- (p5) - In February 2018, Pantaleoni answered the complaint.
- In May 2018, Williams amended the complaint to add NWL in place of a Doe defendant.
- In July 2018, NWL demurred to the complaint.
- (p5) - “Further, the exact duty owed by NWL to Plaintiff is unclear in the pleadings.”
- In August 2018, Williams filed a first amended complaint. The amended complaint alleged, inter alia, that: (1) NWL knew...
- (p6) - likelihood of harm
- (p7) - 5 Section 785, subdivision (a) provides: “All insurers, brokers, agents, and others engaged in the transaction of insurance owe a prospective insured who is 65 years of age or older, a duty of honesty, good faith, and fair dealing. This duty is in addition to any other duty, whether express or implied, that may exist.”
- (p10) - Williams sought help to try to get his money back from NWL. He paid $500 to Mark Starr of the investment firm Edward Jones for that purpose. In March 2017, Williams signed a surrender request to NWL directing that the refund check be mailed to Edward Jones.
- (p12) - Pantaleoni testified that he understood that it was unlawful to use pretext interviews to sell annuities, but said he did not know that it is unlawful to use a trust mill to sell an annuity, nor did he understand what constituted a trust mill.
- (p18) - NWL knew from the first annuity application that Williams was 78 years old. On the suitability questionnaire, a box was checked that Williams’ approximate net worth after purchase of the annuity ranged from $50,000 to $99,000 but also stated that he had a liquid net worth of $120,000 after purchase. Burns agreed that this was a mistake. The file did not indicate that NWL called Williams to find out what his net worth was. There was no reason to question his liquid net worth. The discrepancy was not that big. Williams could still be deemed suitable despite this anomaly, based on his other answers on the questionnaire.
- (p22-23) - Bordenave disagreed with NWL’s expert, Larry Nevonen, that Pantaleoni was a broker, stating that in California to transact life insurance or annuities Pantaleoni had to be an agent of NWL.7
- On cross-examination by NWL, Bordenave confirmed that he was testifying that NWL’s overall supervision of Pantaleoni was insufficient. Bordenave stated that insurance companies have a responsibility to monitor their agents to make sure they are doing the right thing. Failing to monitor agents falls below reasonable custom and practice in the insurance industry. Insurance companies need to monitor agents because they are the company’s agents.
- Bordenave agreed that there was nothing in NWL’s file to put the company on notice that Williams was complaining that he wanted a trust but got an annuity.
- 7 Bordenave also testified that Pantaleoni breached the standard of care: (1) he offered to do trust work as a way to sell insurance in violation of the Insurance Code; (2) he had Williams sign a blank check; (3) Williams apparently did not know he was buying an annuity; (4) Pantaleoni was illegally charging fees for trust work and getting a commission on an insurance transaction at the same time; (5) Pantaleoni may not have delivered the second annuity to Williams; and (6) Pantaleoni did not provide the required 24-hour notice acknowledged by the customer for sales to a person over 65.
- (p25) - The April 5, 2017 letter from Starr was a mixed and unclear request for service to process surrender of the policy combined with complaint language. Nevonen was not surprised the letter went to the service department instead of the compliance department because the letter opened and closed with a request for service. Williams did not put NWL on notice of a problem that needed to be addressed. Williams did not complain at the time about Pantaleoni’s selling practices because he liked the interest in the annuity. Starr handled the surrender properly but mishandled the complaint.
- The Ziebell letter was responsive to the demand letter from Cole based on her reading of the file. There was no documentation that Williams was demanding an investigation of Pantaleoni or return of surrender charges.
- (p29) - C. Motion for Nonsuit
- At the close of Williams’ evidence, NWL filed a motion for nonsuit. The court denied the motion finding that “there has been substantial evidence presented during plaintiff’s case in chief supporting judgment on all causes of action for the plaintiff.”
- (p29) - D. Jury Verdicts and Judgment
- The jury found NWL liable for elder abuse awarding ...
- (p30) - E. Posttrial Proceedings
- NWL filed motions for judgment notwithstanding the verdict and for a new trial, arguing, inter alia, that Pantaleoni was not NWL’s agent in the transactions with Williams. The trial court denied the motions
- (p30) - II. DISCUSSION
- (p30-31) - It is undisputed that NWL issued two annuities, a form of life insurance policy, to Williams on applications submitted by Pantaleoni. Thus, under section 1704.5, Pantaleoni was NWL’s authorized agent and NWL was “responsible for all actions of the agent that relate to the application and policy as if the agent had been duly appointed for the insurer.” (§ 1704.5, subd. (a).) Pantaleoni’s actions included: (1) misrepresenting on NWL’s suitability questionnaire that Williams’ annual income was $24,000 when Williams told Pantaleoni it was $16,000; and (2) misrepresenting on the questionnaire that Williams’ net worth after purchasing the annuity was $50,000 to $99,999 and liquid net worth was $120,000, when Williams had approximately $80,000 invested with a broker but only $114,000 in the bank and Pantaleoni had facilitated Williams’ signing a check for $100,000 drawn on his bank funds to purchase the annuity.
- 8 Regarding punitive damages, the parties stipulated that NWL had $1.4 billion inassets and Pantaleoni was able to pay $1,000 in punitive damages.
- (p31-32) - [Agent... other legal cases... Agent vs. Brokers]
- ⇒ (p32) - NWL misses the point of section 1704.5, which treats an agent selling life insurance differently from agents selling other classes of insurance.
- (p32) - Under section 1704.5, by operation of law, an agent submitting an application for a life insurance or an annuity policy, which is then issued by an insurer, is the insurer’s authorized agent and the insurer is responsible for the agent’s actions. The California Supreme Court emphasized this statutory distinction in its order to this court by highlighting that the definition of an insurance “agent” and “broker” set forth in sections 32 and 33, respectively, expressly exclude life insurance.
- (p32-33) - NWL’s principal contention is that “the undisputed facts show that Pantaleoni was acting outside the scope of his agency for NWL when he sold an annuity to Williams, and therefore NWL cannot be held liable for Pantaleoni’s negligent conduct.” NWL argues Pantaleoni’s agreement with NWL “expressly prohibited the sales tactics Pantaleoni employed with Williams.”
- ⇒ (p33) - NWL cites evidence presented at trial that “Pantaleoni violated California law, violated Pantaleoni’s contract with NWL, or both, when he...
- (2) did not present the NWL annuity completely and accurately while leaving the brochures and disclosures with Williams;
- (p33) - Under section 1704.5, NWL is responsible for these actions and charged with Pantaleoni’s knowledge that these figures were false and that the true state of affairs was that the annuities were unsuitable for Williams. Thus, NWL is responsible for its agent’s actions in procuring an unsuitable annuity.
- ⇒ (p33) - Moreover, assuming Pantaleoni exceeded his authority in some or any of his actions, there is no evidence that Williams knew or had notice that Pantaleoni had breached his contract with NWL or failed to follow NWL’s compliance bulletins.
- Absent notice to the insured, an insurer is liable for the acts of an agent that are within the ordinary scope and limits of the insurance business entrusted to the agent, even if they are in violation of private instructions and restrictions on the agent’s authority.
- (p34) - ... NWL cannot insulate itself from liability by claiming that they were outside the scope of his authority
- (p34) - [re: Elder Abuse]
- Since, under Insurance Code section 1704.5, NWL is charged with knowledge of what Pantaleoni knew—i.e., that Pantaleoni employed deceptive methods to sell Williams unsuitable annuities—NWL committed financial elder abuse in accepting $100,000 from Williams to purchase the annuity and in charging him a $14,949.91 surrender penalty. In our prior opinion, because we reversed the judgment in favor of Williams, we found moot the remaining issues that NWL raised on appeal and that Williams raised in his cross-appeal concerning the attorney fee award.
- ⇒ Since we now affirm the judgment against NWL on Williams’ negligence and financial elder abuse claims, we turn to the remaining issues.
- (p35) - B. Emotional Distress Damages
- (p36) - 10 NWL does not distinguish between negligence and financial elder abuse regarding application of the economic loss rule. We are not obliged to develop NWL’s arguments for it. (Hernandez, supra, 37 Cal.App.5th at p. 277.) In any event, the trial court determined that damages awarded for emotional distress on Williams’ financial elder abuse and negligence claims overlapped.
- (p37) - Regarding the amount of the emotional distress damages awarded, “[w]hen an appellate court reviews a jury verdict for excessive damages, it can interfere ‘only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ [Citation.]” (Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475, 491, quoting Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507.)
- While the emotional distress damages awarded against NWL were high, we cannot say that an award of $420,000 “shocks the conscience,” even though Williams’ economic damages were relatively small, amounting to $14,949.91.
- ⇒ (p37-38) - Here, there was substantial evidence supporting allocation of 70 percent of noneconomic damages to NWL.
- Among other things, NWL did not immediately return Williams’ $100,000 premium payment when he sent back the first annuity during the free look period with a note that he did not want it. Rather, NWL advised Pantaleoni to contact Williams to induce him to keep the annuity, applied the payment on the first annuity to the second annuity, and assessed a surrender charge when Williams sought to return the second annuity. Had these actions by NWL not occurred, Williams would not have unwittingly purchased a second annuity policy, when he never wanted the first one, and incurred a loss of thousands of dollars when he returned that annuity, which as Dr. Haq testified, was the main source of the traumatic psychological effects Williams experienced. Accordingly, we have no basis to disturb the allocation of fault.
- (p38) - C. Punitive Damages
- NWL contends that punitive damages were not justified because the evidence merely showed negligence and there was no evidence that a managing agent knew of or ratified Pantaleoni’s conduct.
- Alternatively, NWL argues that the amount of $2.5 million imposed was unconstitutionally excessive.
- We agree with NWL on the first point and therefore do not address the second.
- To recover punitive damages for financial elder abuse against a corporate defendant, a plaintiff must satisfy the requirements of Civil Code section 3294. Subdivision (c) of Welfare and Institutions Code section 15657.5 provides in relevant part: ...
- (p39) - Williams asserts that: “NWL’s status as Pantaleoni’s principal provides even more substantial evidence supporting the jury’s punitive damage [sic] award. This is because NWL’s status imputes to it, as a matter of law, all of Pantaleoni’s knowledge and ratification of his fraudulent and other misconduct in connection, with two annuity applications. NWL ‘is deemed to have knowledge of such facts,’ ” quoting O’Riordan, supra, 36 Cal.4th at page 288. However, even if we impute knowledge of Pantaleoni’s acts to NWL based on a principal-agent relationship under Insurance Code section 1704.5, recovery of punitive damages for financial elder abuse requires more
- This is insufficient.
- Evidence of advance knowledge of the employee’s unfitness must show that a director, officer or managing agent of the corporate defendant knew that the agent or employee had a propensity to inflict the injury that the plaintiff sustained.
- (p39-40) - (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1159; Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2021) ¶ 13:402.5 [“It must appear that the employer had advance knowledge of the employee’s propensity to perform the type of act committed against the plaintiff”].) Conscious disregard also requires “ ‘ “actual knowledge of the risk of harm it is creating, and in the face of that knowledge, fail[ure] to take steps that [the defendant] knows will reduce or eliminate the risk of harm.” ’ ” (King v. U.S. Bank National Assn. (2020) 53 Cal.App.5th 675, 711, quoting Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159.) At best, the evidence presented showed that NWL was negligent in appointing Pantaleoni and renewing his appointment to sell annuities (e.g., in light of his restricted license). However, there was no evidence that any person at NWL, let alone a director, officer or managing agent, knew in advance of Pantaleoni’s propensity to commit the misconduct that victimized Williams
- (p40) ⇒ Turning to ratification, Williams contends that Perez, Burns, Ziebell and Mohr were NWL’s managing agents. NWL disputes that Ziebell and Mohr were managing agents but concedes that Perez and Burns qualify for that status. However, NWL maintains that neither Perez nor Burns had actual knowledge of Pantaleoni’s misconduct prior to Williams’ suit. We agree with NWL that there was insufficient clear and convincing evidence to support a jury finding that Ziebell and Mohr were NWL’s managing agents.
- 2022 1102 - LC - Williams v Western Life - Judge Candela – Law & Motion – Wednesday, November 2, 2022 @ 9:00 AM - TENTATIVE RULINGS - 2p
- 1-2. 17CV03462 Williams, Barnet Thomas v. Pantaleoni, Victor S. et al.
- EVENT:
- (1) Reconsideration of Attorney Fee Award
- (2) Defendant National Western Life Insurance Company’s Motion to Tax Costs
- Upon reconsideration of the attorney fee award ordered by the Court on November 14, 2019, Plaintiff is awarded attorney fees in the amount of $842,380 as discussed herein
- This is also supported by common sense especially where, as here, Defendant rejected reasonable settlement offers and elected to extensively litigate the case.
- As Plaintiff correctly noted, it was Defendant who voluntary chose to litigate this case in the manner it did.
- As a result, Plaintiff is awarded the sum of $842,380 in attorney fees.