{ "id": 257690, "name": "Elizabeth McLELLAND, Plaintiff-Appellee, v. UNITED WISCONSIN LIFE INSURANCE COMPANY, Defendant-Appellant", "name_abbreviation": "McLelland v. United Wisconsin Life Insurance", "decision_date": "1999-03-26", "docket_number": "Nos. 18,811, 18,837", "first_page": "303", "last_page": "311", "citations": [ { "type": "official", "cite": "127 N.M. 303" }, { "type": "parallel", "cite": "980 P.2d 86" }, { "type": "parallel", "cite": "1999-NMCA-055" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "165 U.S. 593", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8298881 ], "weight": 3, "year": 1897, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/us/165/0593-01" ] }, { "cite": "96 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577340 ], "weight": 2, "pin_cites": [ { "page": "95" }, { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0092-01" ] }, { "cite": "118 N.M. 534", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563434 ], "weight": 4, "pin_cites": [ { "page": "537" }, { "page": "1050" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0534-01" ] }, { "cite": "955 P.2d 716", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 3, "opinion_index": 0 }, { "cite": "124 N.M. 787", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 18615 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/124/0787-01" ] }, { "cite": "1998-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6 1" } ], "opinion_index": 0 }, { "cite": "1998-NMCA-172", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827443 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0366-01" ] }, { "cite": "120 N.M. 191", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558827 ], "weight": 4, "pin_cites": [ { "page": "195" }, { "page": "355" }, { "page": "195" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0191-01" ] }, { "cite": "1999-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257638 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 23-25" }, { "page": "\u00b6\u00b6 23-25" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0001-01" ] }, { "cite": "98 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582473 ], "weight": 6, "pin_cites": [ { "page": "252" }, { "page": "885" }, { "page": "250-52" }, { "page": "883-84" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0247-01" ] }, { "cite": "76 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503349 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "506-07" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0501-01" ] }, { "cite": "55 N.M. 601", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582947 ], "weight": 8, "year": 1951, "pin_cites": [ { "page": "606" }, { "page": "459" }, { "page": "605-06" }, { "page": "459" }, { "page": "606" }, { "page": "459", "parenthetical": "\"party may not speculate on the verdict of a jury\"" } ], "opinion_index": 0, "case_paths": [ "/nm/55/0601-01" ] }, { "cite": "101 N.M. 564", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586408 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "565" }, { "page": "255" }, { "page": "565" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0564-01" ] }, { "cite": "111 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715112 ], "weight": 2, "pin_cites": [ { "page": "172" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0165-01" ] }, { "cite": "110 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716935 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "320" }, { "page": "1012" }, { "page": "320" }, { "page": "1012" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0314-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 29215, "ocr_confidence": 0.679, "pagerank": { "raw": 1.2722579778223726e-07, "percentile": 0.6150422283306864 }, "sha256": "fe8429f00f9f65efa9c0450fe241d8b4a9e817d17406dc71c66f5a7b83126099", "simhash": "1:9b82b1684addd666", "word_count": 4824 }, "last_updated": "2023-07-14T14:57:01.529900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and BUSTAMANTE, JJ., concur." ], "parties": [ "Elizabeth McLELLAND, Plaintiff-Appellee, v. UNITED WISCONSIN LIFE INSURANCE COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHARTZ, Judge.\n, {1} United Wisconsin Life Insurance Company (United Wisconsin) appeals a $250,000 punitive damages award entered against it for willfully engaging in an unfair trade practice, in violation of the Unfair Practices Act, NMSA 1978, \u00a7\u00a7 57-12-1 to 57-12-22 (1967, as amended through 1995) (the UPA). It does not challenge the award of $9169.84 in compensatory damages. Its two contentions on appeal are: (1) The UPA does not permit a jury to award punitive damages; it only permits a judge to award up to treble damages for a willful violation of the Act. (2) The punitive damages award is excessive under constitutional and common-law standards. Plaintiff, Elizabeth McLelland, denies that the award is excessive and argues that United Wisconsin is precluded from raising the first contention because it approved a special verdict form that asked the jury to assess punitive damages for a willful UPA violation. We agree with United Wisconsin\u2019s first contention and therefore reverse and remand for the district court to decide whether to award treble damages. We need not reach United Wisconsin\u2019s second contention, because it does not argue that treble damages would be excessive. BACKGROUND\n{2} McLelland bought health insurance from United Wisconsin to cover hospital and physician expenses in case a medical emergency prevented her from giving birth at home with a midwife\u2019s assistance. The United Wisconsin brochure listed \u201cComplications of Pregnancy\u201d as a covered expense. The insurance agent selling the policy circled this language in the brochure and, according to McLelland\u2019s testimony, assured McLelland that Caesarian sections were covered by the policy. The brochure advised the reader to refer to the certificate of coverage \u201cfor a more detailed list of benefits.\u201d But at the time McLelland purchased the policy, the agent did not show McLelland a copy of the certificate; indeed, he had never seen one. Although the insurance company mailed McLelland the certificate several weeks later, she did not read it. On page twenty-one of the thirty-seven page document. Caesarian section delivery was excluded from the definition of complications of pregnancy.\n{3} McLelland required an emergency Caesarian section. The hospital and physician expenses totaled about $7000. United Wisconsin denied coverage. After fruitless telephone and mail correspondence. McLelland sued the company on four theories of recovery: (1) breach of contract; (2) violation of the duty of good faith under the insurance contract (referred to by the parties as the \u201cinsurance bad faith\u201d claim); (3) commission of an unfair claims practice prohibited by the New Mexico Insurance Code, NMSA 1978, \u00a7 59A-16-20 (1997); and (4) violation of the UPA.\n{4} On at least two occasions during trial the district court discussed with counsel the availability of punitive damages. The first occasion was when counsel were debating the admissibility of testimony by McLelland\u2019s expert witness. Although the discussion did not focus on this particular point, MeLelland\u2019s position apparently was that the only possible punitive damages awards would be a jury award under her claims for insurance bad faith or unfair claims practices, or a court award of up to treble damages under the UPA claim. Later, during the hearing on United Wisconsin\u2019s motion for a directed verdict, United Wisconsin stated that the only punitive damages that could be recovered would be those awarded by the jury for insurance bad faith or treble damages awarded by the court under the UPA. McLelland did not dispute that proposition in her argument against United Wisconsin\u2019s motion.\n{5} In its instructions to the jury after the close of evidence, the district court indicated that the jury could award punitive damages only if McLelland proved her bad faith claim. The damages instruction stated:\nIf you should decide in favor of McLelland on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved' by McLelland to have been proximately caused by United Wisconsin\u2019s wrongful conduct as claimed:\n1. The amount payable by United Wisconsin under the terms of the certificate of insurance.\n2. The amount of any incidental or consequential loss to McLelland. Any damages found by you for this loss must be damages which United Wisconsin and McLelland could reasonably have expected to be a consequence of United Wisconsin\u2019s failure to perform its obligations under the insurance policy.\n3. If you find that McLelland should recover compensatory damages for the bad faith actions of United Wisconsin, then you may award punitive damages.\nPunitive damages are awarded for the limited purposes of punishment and to deter others from the commission of like offenses.\nThe amount of punitive damages must be based on reason and justice, taking into account all the circumstances, including the nature of the wrong and such aggravating and mitigating circumstance's as may be shown. The amount awarded, if any, must be reasonably related to the compensatory damages and injury.\nWhether any of these elements of damages have been proved by the evidence is for you to determine. Your verdict must be based upon proof and not upon speculation, guess and conjecture.\nFurther, sympathy for a person, or prejudice against any party, should not affect your verdict and is not a proper basis for determining damages.\n{6} The principal issue on appeal arose after the district court had instructed the jury and the jury had retired to deliberate. The court showed counsel a verdict form it had drafted and asked them to respond \u201cimmediately\u201d if they had any suggested changes. Both counsel approved the form.\n{7} The present controversy concerns the instructions regarding Question 7 on the special verdict form, which permitted the jury to award an uncapped amount of punitive damages for violation of the UPA. The questions and the jury\u2019s answers can be summarized as follows:\nQuestion 1: Did United Wisconsin breach its contract with McLelland?\nAnswer: Yes.\nQuestion 2: Was such breach of contract committed in bad faith?\nAnswer: No.\nBecause it answered \u201cno\u201d to Question 2, the jury was directed to skip Question 2A, which asked whether punitive damages should be awarded against United Wisconsin for \u201cfrivolous and unfounded denial of McLelland\u2019s claim.\u201d\nQuestion 3: Did United Wisconsin violate the Insurance Code?\nAnswer: Yes.\nQuestion 4: Did United Wisconsin violate the Unfair Practices Act?\nAnswer: Yes\nBecause it answered \u201cyes\u201d to Question 4, the jury was directed to answer Question 4A.\nQuestion 4A: Should punitive damages be awarded against United Wisconsin for willful misconduct in denial of McLelland\u2019s claim?\nAnswer: Yes.\nQuestion 5: Was United Wisconsin\u2019s breach of contract, bad faith, violation of the Insurance Code, or violation of the UPA the proximate cause of MeLelland\u2019s damages?\nAnswer: Yes.\nQuestion 6: What was the total amount of damages suffered by McLelland?\nAnswer: $9,169.84.\nThe jury was directed to answer Question 7 only if it had answered \u201cyes\u201d to either Question 2A or 4A.\nQuestion 7: To what amount of punitive damages is McLelland entitled?\nAnswer: $250,000.\n{8} Immediately upon the return of the verdict, United Wisconsin moved for a judgment not withstanding the verdict on the ground that the jury could not award any punitive damages because the jury did not find that the breach of contract had been committed in bad faith. It repeated this argument in its written post-verdict motion in the alternative for judgment notwithstanding the verdict, remittitur, or new trial. Although United Wisconsin acknowledged that the court could award punitive damages under the UPA, it asserted that the judgment could not exceed treble damages. The court denied the motion and entered judgment on the full amount awarded by the jury.\n{9} On appeal United Wisconsin restates the position it expressed in district court. In her answer brief McLelland does not dispute that the $250,000 award of punitive damages exceeds the statutory maximum. Instead, she argues that United Wisconsin cannot now raise its claim of error because it failed to object to the verdict form before the jury returned its verdict. We first review the relevant provisions of the UPA and then turn to McLelland\u2019s preclusion arguments.\nI. Punitive Damages and the UPA\n{10} The section of the UPA entitled \u201cPrivate remedies\u201d provides, in pertinent part:\nAny person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.\nNMSA 1978, \u00a7 57-12-10(B) (1987). Thus, in a jury trial (1) the jury may assess actual, or compensatory, damages, and (2) the court, in its discretion, may increase the award to a maximum of triple the compensatory damages if the jury finds willful misconduct. Any such increase ordered by the court \u201cis a form of punitive damages.\u201d Hale v. Basin Motor Co., 110 N.M. 314, 320, 795 P.2d 1006, 1012 (1990).\n{11} In addition, the same conduct that violates the UPA may also form the basis of another cause of action that permits an award of punitive damages. The UPA does not prohibit punitive damages that can be so justified. As set forth in Section 57-12-10(D) of the UPA: \u201cThe relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.\u201d\n{12} There are two limitations on such an award of punitive damages. First, if a jury awards punitive damages under a non-UPA cause of action and a court awards non-compensatory damages under the UPA for the same conduct, the plaintiff cannot recover both. See Hale, 110 N.M. at 320, 795 P.2d at 1012. To prevent double recovery, the plaintiff must elect between the two. See id.\n{13} Second, and more pertinent to this appeal, to obtain punitive damages beyond those permitted by the statutory treble-damages provision, the plaintiff must establish a cause of action other than one under the UPA. When the UPA permits the plaintiff to obtain additional relief \u201cunder the common law or other statutes,\u201d it is clearly requiring the plaintiff to establish a distinct common-law or statutory cause of action. In Hale our Supreme Court authorized an award of punitive damages, but only if the district court on remand found that the plaintiff had proved common-law fraud. See id. In our view, it would be unnatural and strained to read Section 57-12-10(D) as saying that damages available pursuant to a cause of action under the common law or another statute can be awarded under the UPA itself, without the plaintiffs having to litigate successfully the other cause of action. See Naranjo v. Paull, 111 N.M. 165, 172, 803 P.2d 254, 261 (Ct.App.1990) (punitive damages not available under New Mexico Securities Act despite statutory language similar to that in Section 57-12-10(D)).\n{14} Here, the jury failed to find a factual basis for any punitive damages other than those available under the UPA. Although United Wisconsin\u2019s conduct toward McLelland may have constituted common-law fraud, McLelland pleaded no such claim. Thus, the most that the jury could award McLelland was her compensatory damages of $9169.84. Because the jury found United Wisconsin\u2019s violation of the UPA to be willful, the judge could have raised the award to as much as three times that figure, $27,-509.52. The jury\u2019s verdict far exceeded that sum. Ordinarily, the judgment would need to be reduced accordingly. McLelland contends, however, that a reduction is inappropriate in this case because United Wisconsin failed to raise the issue in a timely manner in district court. We therefore turn to the question of preclusion.\nII. PRECLUSION\n{15} United Wisconsin specifically approved the special verdict form sent to the jury and did not complain about the relevance of Question 7 \u2014 the special interrogatory on the amount of punitive damages \u2014 until the jury returned its verdict. McLelland asserts that United Wisconsin\u2019s failure to object in a timely manner precludes it from arguing on appeal that a jury cannot award punitive damages for violation of the UPA. We disagree.\n{16} McLelland raises two arguments. One argument is based on Rule 1-039(B) NMRA1999, which states:\nAdvisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury; or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.\nOur Supreme Court construed identical language in Peay v. Ortega, 101 N.M. 564, 565, 686 P.2d 254, 255 (1984). McLelland reads Peay as holding that when the parties \u201cagree to submit an issue to the jury for final determination, the trial court does not err in giving effect to the jury\u2019s determination and, indeed, may err in failing to give it effect.\u201d In Peay the plaintiff had sued for specific performance of a real estate agreement and for damages. Pursuant to the predecessor of Rule 1-039(B), the parties stipulated to having the case decided by a jury. Two days into trial, however, the district court discharged the jury on the ground that the issues in the case were equitable issues that should be decided by a judge. The court proceeded to hear the entire ease and enter judgment for the defendant. The Supreme Court reversed, saying:\n[Ojnce the parties consent to try an issue to a jury and the court orders a jury trial pursuant to the stipulation, the trial court cannot withdraw the legal issues from the jury on the ground that there are also equitable issues involved. Here, a claim for damages was alleged and legal defenses thereto raised and those legal issues were being tried before the jury. There were material issues of fact to be tried before the jury.\nId. at 565, 686 P.2d at 255.\n{17} Perhaps under Peay the parties\u2019 approval of the special verdict form in this case transferred to the jury the court\u2019s' statutory authority under the UPA to award treble damages. But nothing in Peay suggests that the jury could be conferred greater power than the court possessed in awarding damages. Even if the jury could award the equivalent of punitive, damages by granting McLelland more than compensatory damages, the UPA unequivocally limits the total award to treble damages. Rule 1-039 authorizes the parties to agree to permit a jury, rather than the court, to decide the case; it does not purport to change the substantive law regarding the relief permitted under a particular cause of action. In short, Peay does not support the jury\u2019s award of $250,000 in punitive damages.\n{18} McLelland\u2019s briefs rest her second argument on a line of cases represented by Holloway v. Evans, 55 N.M. 601, 238 P.2d 457 (1951), Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966), and Harrison v. ICX, Illinois-California Express, Inc., 98 N.M. 247, 647 P.2d 880 (Ct.App.1982). In Holloway our Supreme Court stated that, \u201ca party may not speculate on the verdict of a jury and thereafter be heard to complain of error in a court of review.\u201d 55 N.M. at 606, 238 P.2d at 459. As we expressed the proposition in Harrison, \u201cThe law is very clear that a litigant in a jury trial may not participate in the submission of an improper verdict or other improper matters and then seek to have the verdict set aside because it may turn out to be unfavorable.\u201d 98 N.M. at 252, 647 P.2d at 885. After oral argument McLelland submitted a letter to this Court contending that further supporting authority can be found in Allsup\u2019s Convenience Stores, Inc. v. North River Ins. Co., 1999-NMSC-006, \u00b6\u00b6 23-25, 127 N.M. 1, 976 P.2d 1.\n{19} We find these four decisions distinguishable. In all of them the appellants were seeking a new trial. In Holloway, 55 N.M. at 605-06, 238 P.2d at 459, the jury had to determine liability on both the complaint and a cross-complaint. The jury returned with a verdict on only the complaint. The court retained that verdict but sent the jury back to deliberate on the cross-complaint. During the deliberations on the cross-complaint the jury sought further guidance from the court. The court told the jury that if it found damages for one side, it would be presumed that it would not find damages for the other. No party objected to the instruction. The appellants contended on appeal that they were entitled to a new trial because of the irregular procedure with respect to the deliberations on the cross-complaint. The Supreme Court held that it need not decide the issue because it had not been preserved at trial.\n{20} In Scott, 76 N.M. at 506-07, 416 P.2d at 520, the argument on appeal concerned a difference in appearance of the verdict forms. The form of verdict favoring the appellees was an original, whereas the forms of verdict favoring the appellants were on lighter-weight carbon paper and the headings on them were carbon imprint. The appellants did not complain about the appearance of the forms until their motion for a new trial.\n{21} In Harrison, 98 N.M. at 250-52, 647 P.2d at 883-84, the appellants argued that they were entitled to a new trial because the special interrogatories to the jury were confusing. We held that this contention could not be raised on appeal because the appellants had hot objected to the special interrogatories before the jury retired.\n{22} In Allsup\u2019s, 1999-NMSC-006, \u00b6\u00b6 23-25,127 N.M. 1, 976 P.2d 1, the plaintiff sought on appeal to hold the defendant jointly and severally liable on its contract claims even though the plaintiff had agreed to a special interrogatory that applied comparative fault to all claims \u2014 both tort and contract \u2014 against all the defendants. Denying relief, our Supreme Court wrote:\nThe verdict was clearly and irrevocably structured before it was rendered so as to make it now impossible to determine which claims were successful against which defendants and what the extent of damages was. [Plaintiff] was apparently aware of this potential outcome, but chose to wait and advance an all-or-nothing position after the verdict, in other words, move for joint and several liability rather than to ask that a more detailed verdict form be put before the jury. The opportunity for [Plaintiff] to complain with regard to this instruction is therefore, foregone.\nId. \u00b6 25.\n{23} Thus, in all of these cases the appellants\u2019 failure to raise a timely objection made it impossible to determine what the verdict would have been if the jury had been properly instructed. The alleged error in the instructions could be corrected only by ordering a new trial. The rule expressed in these cases serves to avoid re-trials when parties fail to alert the trial court to objectionable procedures in a timely manner.\n{24} This rule is in keeping with our general jurisprudence concerning preservation of error. The two principal purposes of the requirement that an issue be preserved are \u201c(1) that the trial court be alerted to the error so that it is given an opportunity to correct the mistake, and (2) that the opposing party be given a fair opportunity to meet the objection.\u201d Gracia v. Bittner, 120 N.M. 191, 195, 900 P.2d 351, 355 (Ct.App.1995). The purposes of the requirement that the objection be raised in a timely manner are to preclude a party from tactical \u201cgambling\u201d (as by waiting to see whether hearsay helps or hurts the party\u2019s cause before deciding whether to object) and to enable the court or the opposing party to respond while a cure is still possible without unfairly prejudicing the opposing party or unduly burdening the judicial system (as by requiring a new trial that could have been avoided by a more prompt objection). Cf. Holloway, 55 N.M. at 606, 238 P.2d at 459 (\u201cparty may not speculate on the verdict of a jury\u201d); State v. Gutierrez, 1998-NMCA-172, \u00b6 10, 126 N.M. 366, 969 P.2d 970 (objection that evidence is admissible for only a limited purpose need not be' raised at time evidence is admitted; issue is preserved by tendering limiting instruction after close of evidence). See generally E. Allan Farnsworth, Changing Your Mind: The Law of Regretted Decisions 127-205 (1998) (discussing relinquishments and preclusions). When .these purposes are not served, \u201cthe preservation requirement should [not] be applied ... in an unduly technical manner[.]\u201d Gracia, 120 N.M. at 195, 900 P.2d at 355.\n{25} In contrast to the holdings in the Holloway line of cases, a holding that United Wisconsin\u2019s argument is precluded in this case would be an unduly technical application of the preservation rule. We do not see how United Wisconsin\u2019s failure to object at the outset to the special verdict form could have been tactical. Also, no incurable damage resulted from the brief delay in United Wisconsin\u2019s raising its issue. McLelland has not shown any way in which justice would be served by forbidding United Wisconsin from arguing that the judgment must be modified to comply with the requirements of the UPA. McLelland does not, and could not, contend that its presentation to the jury, either its evidence or its argument, would have been affected if United Wisconsin had objected to the special verdict form prior to its being submitted to the jury. After all, the record indicates that counsel were not even shown the special verdict form before the jury retired to deliberate. And prior to seeing the verdict form, McLelland could not have assumed that the jury would be permitted to award punitive damages for violation of the UPA. On more than one occasion prior to the jury\u2019s deliberation, United Wisconsin had made clear its position that the only punitive damages that could be awarded under the UPA were the treble damages that could be awarded by the court. McLelland had apparently not objected to that proposition, and the instruction to the jury on damages permitted punitive damages only if United Wisconsin acted in bad faith. Moreover, there is no reason to believe that the jury\u2019s deliberations would have been different if United Wisconsin had objected in time for the district court to revise the directions regarding Question 7 (the interrogatory on punitive damages) to provide that the jury could consider punitive damages only if it found bad faith. The interrogatories were clear and straightforward, and Question 7 was to be answered only after the jury had answered all the other interrogatories. McLelland has not argued on appeal that the erroneous directions regarding Question 7 could have misled the jury in its answers to any other interrogatories.\n{26} In our view, the controlling line of authority is not those eases following Holloway but those cases that have disregarded answers to certain special interrogatories when other answers are dispositive. In Turpie v. Southwest Cardiology Associates, P.A., 1998-NMCA-042, \u00b6 4, 124 N.M. 787, 955 P.2d 716, the appellant sought an entry of judgment in her favor on her claim of loss of consortium arising from her husband\u2019s death. She had joined the claim with a wrongful death claim on behalf of her husband\u2019s estate. See id. \u00b6 1. The jury answered \u201cno\u201d to a special interrogatory asking whether the defendant\u2019s malpractice was the proximate cause of her husband\u2019s injury and death. See id. In answer to another interrogatory, however, the jury found that the defendant\u2019s malpractice caused the appellant\u2019s damages from loss of consortium. See id. The jury proceeded to award her $99,000 in damages. See id. \u00b6 2. Despite the jury\u2019s answers on the special verdict form, the district court entered judgment in favor of the defendant. See id. \u00b6 3. We agreed with the district court that appellant\u2019s loss-of-consortium claim was derivative, so that she could not recover unless the defendant\u2019s malpractice was the proximate cause of her husband\u2019s injury and death. See id. \u00b6\u00b6 5-9.\n{27} The appellant contended, however, that the defendant was barred from raising his argument that the appellant was not entitled to damages, because he had failed to object to the special interrogatories before they went to the jury. We rejected her contention. We held that the jury\u2019s answer to the question whether the defendant\u2019s malpractice was the proximate cause of the husband\u2019s death \u201ccontrolled] all other aspects of the case.\u201d Id. \u00b6 17. Accordingly, \u201c[t]he responses concerning [the appellant\u2019s] damages are best viewed as surplusage.\u201d Id. The verdict was therefore not erroneous, judgment could be entered in favor of the defendant on the verdict, and the defendant had not forfeited its argument by failing to object to the special verdict form before it was submitted to the jury.\n{28} Our decision in Turpie followed our earlier decision in Ramos v. Rodriguez, 118 N.M. 534, 882 P.2d 1047 (Ct.App.1994). Ramos stated that \u201c[t]he general rule applied by courts in other jurisdictions ... is that a finding that there was no proximate cause between the negligence of a defendant and the injuries suffered by a plaintiff, renders any additional jury findings concerning the allocation of the percentage of fault to be mere surplusage.\u201d Id. at 537, 882 P.2d at 1050.\n{29} Following Turpie and Ramos, we hold that the jury\u2019s answer to Question 2, in which it stated that United Wisconsin had not committed a breach of contract in bad faith, controlled the disposition of the case with respect to punitive damages. In the absence of a finding of bad faith, the jury could not award punitive damages. Its answer to Question 7, in which it stated that McLelland was entitled to an award of $250,000 in punitive damages, could not affect the judgment.\n{30} McLelland attempts to distinguish Ramos and Turpie on the ground that in those eases \u201cthere was nothing objectionable about the verdict form.\u201d We question that characterization. In both cases the jury was directed to answer a special interrogatory even when the jury\u2019s answer to a prior interrogatory would render the interrogatory moot. For example, in Turpie the jury was instructed that if it answered that the defendant had committed malpractice, it should then answer questions 5 and 6. See Turpie, 1998-NMCA-042, \u00b6 1,124 N.M. 787, 955 P.2d 716. Question 5 asked whether the malpractice caused the death of the plaintiffs husband. Question 6 asked whether the malpractice was the proximate cause of the plaintiffs loss of consortium. See id. The direction to the jury was \u201cobjectionable\u201d in that the jury was directed to answer whether the malpractice caused the plaintiffs injuries even if it found that the malpractice had not caused the injury and death of her husband. The error in Turpie was like the error here. The jury in this ease was directed to answer the question on punitive damages even if it failed to find bad faith.\n{31} In any event, we think it is beside the point whether or not the verdict form could be characterized as \u201cobjectionable.\u201d As we stated in Turpie, the issue is whether the verdict is \u201csupportable by law.\u201d Id. \u00b6 15. In this case the punitive damages award was not supportable, because the jury could award punitive damages only if it found a bad faith breach of contract by United Wisconsin. After the jury answers the interrogatories on a special verdict form, the duty of the district court is to \u201c \u2018determine] upon such facts the relief which the law award[s] to the respective parties.\u2019 \u201d Dessauer v. Memorial Gen. Hosp., 96 N.M. 92, 95, 628 P.2d 337, 340 (Ct.App.1981) (quoting Walker v. New Mexico & So. Pac. Ry. Co., 165 U.S. 593, 597, 17 S.Ct. 421, 41 L.Ed. 837 (1897)). Given the jury\u2019s finding that there was no bad faith breach of contract, the district court\u2019s duty under the law was to award McLelland only compensatory damages, which the court could then treble.\n{32} Thus, we must set aside the punitive damages award of $250,000. We remand to the district court to decide whether to award McLelland treble damages under the UPA.\nCONCLUSION\n{33} We reverse the award of punitive damages and remand for a determination by the district court whether to grant treble damages pursuant to the UPA. No costs are awarded on appeal.\n{34} IT IS SO ORDERED.\nALARID and BUSTAMANTE, JJ., concur.", "type": "majority", "author": "HARTZ, Judge." } ], "attorneys": [ "Steven Vogel, Albuquerque, William F. Webber, Las Cruces, Steven L. Tucker, Tucker Law Firm, P.C., Santa Fe, for Appellee.", "Edward Ricco, Tracy M. Jenks, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for Appellant." ], "corrections": "", "head_matter": "1999-NMCA-055\n980 P.2d 86\nElizabeth McLELLAND, Plaintiff-Appellee, v. UNITED WISCONSIN LIFE INSURANCE COMPANY, Defendant-Appellant.\nNos. 18,811, 18,837.\nCourt of Appeals of New Mexico.\nMarch 26, 1999.\nCertiorari Denied, No. 25,702, April 28, 1999.\nSteven Vogel, Albuquerque, William F. Webber, Las Cruces, Steven L. Tucker, Tucker Law Firm, P.C., Santa Fe, for Appellee.\nEdward Ricco, Tracy M. Jenks, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for Appellant." }, "file_name": "0303-01", "first_page_order": 339, "last_page_order": 347 }