ON APPELLANT'S AND APPELLEES' MOTIONS FOR REHEARING AND ON APPELLEES' MOTION FOR REHEARING EN BANC

CHAPA, Justice.

The motion for rehearing en banc is granted, the opinion of this court dated July 22, 1992 is withdrawn, and the following opinion is substituted therefore.

Richard R. Soriano sued Texas Farmers Insurance Company in Duval County alleging negligence, breach of the duty of good faith and fair dealing, and gross negligence based on several lawsuits wherein Farmers defended Soriano's interests pursuant to an insurance policy. Farmers sought contribution or indemnity from the law firm of Auforth, Keas O'Reilly, which had represented Soriano in the underlying lawsuits. Based on a jury verdict, the trial judge rendered judgment against Farmers for $520,577.24 in actual damages and prejudgment interest, plus $5,000,000 in exemplary damages. The trial court also ordered a take nothing judgment on Farmers' third party action against Auforth, Keas O'Reilly.

Facts.

In September of 1979, Richard Soriano and his friend Adolfo Lopez were celebrating following a football game in Duval County. After apparently considerable drinking, Soriano and his passenger, Adolfo Lopez, were involved in a car accident. Just prior to the accident, Soriano tried to pass a truck in rainy weather, and collided head on with another vehicle. Soriano's passenger, Adolfo Lopez, was fatally injured.

The occupants of the oncoming vehicle, which was driven by Mr. Medina, also sustained severe injuries. Mr. Medina suffered serious injuries including broken ribs, a broken jaw, broken feet, and severe head lacerations, while his wife of thirty years was killed in the accident. Additionally, the Medinas' eleven-year-old son sustained three broken teeth, and their twelve-year-old daughter suffered a broken collar bone and facial cuts resulting in permanent scars.

Soriano was insured under his parents' policy with Farmers, which, apparently, consisted of only minimum coverage. Any one injury had limits of $10,000, with the aggregate not to exceed $20,000. Farmers set up tentative reserves of $9,000 for Mr. Medina, $9,000 for the estate of Mrs. Medina, and $1,000 for each of the Medinas' two children. Farmers initially attempted to settle the entire case directly with the Medinas by tendering the entire policy limits of $20,000; however, the Medinas refused the offer at that time and, instead, hired an attorney in order to discover whether or not Soriano possessed any personal assets. Subsequently, the parents of Adolfo Lopez also hired an attorney and filed suit. Farmers hired Fred Auforth to defend Soriano in both lawsuits in compliance with Farmers' duties under the insurance policy.

The two lawsuits were consolidated for trial. As the jury was being selected, Auforth, on behalf of Farmers, settled the Lopez claim for $5,000 without prior notice to the Medinas. Huseman, the Medinas' attorney, testified that he told Auforth that he was willing to settle all of the Medinas' claims for the $20,000 prior to the Lopez settlement, and that none of the Medina claims would be settled for less than the $20,000 originally offered. Farmers asserts that after it settled the Lopez claim, it offered the remaining $15,000 of insurance to the Medinas, who refused the offer and demanded the full original policy limits of $20,000.

The case went to trial and the Medinas recovered a judgment of $172,187 plus interest against Soriano. Soriano then assigned whatever rights he had against Farmers in exchange for a covenant not to execute. Suit was then filed in Richard Soriano's name against Farmers, wherein various causes of action were alleged, including negligence, gross negligence, and breach of the duty of good faith and fair dealing. A jury subsequently found that Farmers was negligent and grossly negligent in handling the Medina claims and that it had breached its duty of good faith and fair dealing to Soriano.

Appellant raises the following points of error:

1. the trial court erred in denying appellant's objections to the charge and in rendering judgment against the appellant because there is no evidence or finding that the Lopez settlement was unreasonable, negligent, or made in bad faith;

2. the trial court erred in denying appellant's Motion for Instructed Verdict, appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motions to Disregard Jury Findings and for Judgment Notwithstanding the Verdict because the evidence is legally and factually insufficient to support findings of negligence, gross negligence, proximate cause, and breach of the duty of good faith and fair dealing;

3. the trial court erred in overruling appellant's objections to submission of Special Issue No. 1 because it was unsupported by any written pleading, contrary to the theory the case was tried upon, and calculated to nudge the jury toward its insupportable finding of negligence;

4. the trial court erred in overruling appellant's objections to the instruction submitted under Special Issue No. 3 because it was unsupported by any written pleading and was calculated to confuse the jury into making its insupportable bad faith finding;

5. the trial court erred in overruling appellant's objections to the instruction submitted under Special Issue No. 9 because it erroneously instructed the jury to include, as damages, the full amount of the Webb County judgment, thereby depriving the jury of discretion to award a lesser amount or zero;

6. the trial court erred in rendering judgment against the appellant, in overruling appellant's Motion to Disregard Jury Findings and in overruling appellant's Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the finding of actual damages;

7. the trial court erred in denying appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motion for Judgment Notwithstanding the Verdict because there is no finding and insufficient evidence that any vice principal of the appellant committed conduct for which exemplary damages may be awarded and, alternatively, the answer to Special Issue No. 6 conflicts with the liability findings against the appellant, in which case the trial court erred in overruling appellant's Motion for New Trial;

8. the trial court erred in rendering judgment against the appellant and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict and Motion for New Trial because Special Issue No. 4, that the appellant acted intentionally and knowingly, is not supported, either legally or factually, by the evidence;

9. the trial court erred in rendering judgment against the appellant, and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict, and Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the excessive award of $5,000,000 in exemplary damages and further, the exemplary damages awarded violated appellant's right to due process and equal protection under the Texas and federal constitutions, as well as the prohibition against excessive fines contained in Tex. Const. art. I, § 13; and,

10. the trial court erred in overruling appellant's Motion to Modify, Correct, or Reform the Judgment because the judgment awards excessive and duplicative interest.

Initially, appellant contends that the trial court erred in denying appellant's objections to the charge and in rendering judgment against it because there is no evidence or finding that the Lopez settlement was unreasonable, negligent, or made in bad faith.

We immediately note that most, if not all, of appellant's points of error are improperly multifarious. Kroger Co. v. Cellan, 560 S.W.2d 505, 507 (Tex.Civ.App. — Tyler 1977, writ ref'd n.r.e.); TEX.R.APP.P. 74. We will, nevertheless, address the issues as we understand them.

Appellant is required to present this court with a record which establishes the error complained of and with a brief which clearly defines the points of error, cites proper authority, and directs the attention of this court to the record where the error is properly preserved. TEX.R.APP.P. 50, 74.

In order to preserve error, "[a] party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection." Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985), citing TEX.R.CIV.P. 274. "A party is [also] confined to grounds of objection stated in the trial court, and will not be able to enlarge his complaint on appeal"; when violated, an "[a]ppellant has waived any complaint regarding the wording of [the] Special Issue [complained of]." Williams v. Union Carbide Corp., 734 S.W.2d 699, 703 (Tex.App. — Houston [1st Dist.] 1987, writ ref'd n.r.e.).

A review of that part of the record cited by appellant for support in accordance with TEX.R.APP.P. 74 reveals that the appellant has improperly enlarged his complaint on appeal. Id. Before the court below, appellant clearly directed its objections to Special Issue No. 1 from the standpoint of whether "the offer of settlement of the Maria Medina death claim and Carlos Medina's personal injury claim were conditional offers," and in the alternative, appellant requested an "instruction in that regard." In fact, appellant specifically advised the court that it would later submit written requests for an issue or an instruction covering the said objection prior to the charge being read to the jury. In this respect, the transcript reveals the following issue and instruction were later requested in writing by the appellant and denied by the court:

SPECIAL ISSUE NO. Do you find from preponderance of the evidence that the offer of settlement of the Maria Medina death claim and the Carlos Medina personal injury claim were conditional offers.

A conditional offer to settle a claim arises when the settlement of that claim depends upon the settlement of another claim or condition.

INSTRUCTION NO. You are instructed that an insurance company cannot be liable for refusing an offer of settlement if that offer is conditional.

A conditional offer to settle a claim arises when the settlement of that claim depends upon the settlement of another claim or condition.

Thus, the record clearly reflects that the appellant has waived the complaint by improperly "enlarg[ing] his complaint on appeal." Williams, 734 S.W.2d at 703.

Nevertheless, embracing what appears to be unassigned error, the dissent would reverse and render. Without citing to any Texas authority, the dissent attempts to create a completely new standard of review for multiple claim cases, and ignores time honored standards of review in attacking the charge. Additionally, although the appellant simply relies on a contention that "[a]s a matter of law, Soriano's failure to obtain a finding that the Lopez settlement was negligent or in bad faith invalidates his entire lawsuit," the dissent goes further and embraces unassigned error in concluding "that because there is no evidence and no finding by the jury that the Lopez settlement was unreasonable and in bad faith, when viewed by itself, there is no proof of a cause of action." (Emphasis added.)

Although the duty herein involved is only the duty voluntarily assumed by the carrier to the insured under the policy, the dissent repeatedly attempts to make the insured the culprit for being underinsured. However, while we recognize that the insured's negligence caused the accident, the issue here is not whether the insured should be penalized for being underinsured, but simply whether the carrier breached its duty under the policy. Further, this insurer, who drafted this policy, was not forced to issue this policy to this insured, or to assume the duties therein imposed upon itself. Moreover, under Texas law, it "is a fundamental rule that the writing will be construed most strictly against the party who drafted it," and that language in an insurance "policy must be construed strictly against the insurer and liberally in favor of the insured." Foremost County Mut. Ins. Co. v. Home Indem. Co., 897 F.2d 754, 759 (5th Cir. 1990); see also Barnett v. Aetna LIfe Ins. Co., 723 S.W.2d 663, 666 (Tex. 1987); Ellis v. Mortgage Trust, Inc., 751 S.W.2d 721, 723 (Tex.App. — Fort Worth 1988, no writ). Moreover, if the dissent is correct, breach of bad faith and fair dealing causes of actions would be effectively eliminated in multiple claim cases because the burden on any insured claiming such a breach by an insurer would be insurmountable. The duty in such a cause of action is the duty of the carrier to protect its insured. In this case, the cause of action would arise upon an alleged breach of such a duty owed to Soriano.

The dissent would require an insured in a multiple claim case to plead and raise fact issues that any settlement made by the insured when "viewed by itself" was unreasonable without considering any other unsettled claims. This would undoubtedly result in summary judgments as a matter of course. In a situation involving two or more claims where the carrier settles one, the insured would be subject to summary judgment unless he could plead and raise fact issues of breach of good faith and fair dealings considering only a claim settled "viewed by itself," without regard for the other unsettled claims. This would necessarily mean that any evidence surrounding either the relationship between the insured and carrier or any other unsettled claims would become irrelevant, regardless of the disastrous consequences to the insured.

Considering that the heart of the cause of action is the contention by the insured that his insurer's breach of good faith and fair dealings caused him harm at the hands of a claimant with whom the insurer has not settled, the result would be that the vast majority of the evidence the insured would normally rely upon to establish his claim would be irrelevant and inadmissible. Moreover, every claimant is required to establish some damage in any cause of action. The insured in such cases would be precluded from establishing any damage since his damages would normally be at the hands of an unsettled with claimant, which could not be considered under the standard advocated by the dissent. This would effectively relieve the insurer of any responsibility whatsoever to protect an insured in a case of multiple claims, as long as the insurer would pay one of the multiple claimants a sum which could be considered reasonable when considered alone. In fact, under the dissent's logic, the insurer would simply be required to pay the entire amount of the coverage to the claimant with the most insignificant claim. Having done so, the insurer would be relieved of any further obligation to the insured, since it would be simple to show how reasonable payment of the entire coverage in settlement of the insignificant claim was, considering that claim by itself, without considering all the other claims.

If an insured is to receive the protection the insurer has imposed upon itself under the policy, he must have the right to have a jury determine the ultimate question of whether the carrier breached the duty of good faith and fair dealings from the totality of the circumstances surrounding the occurrence. This would necessarily include the relationship between the insured and carrier and all claims arising from the incident.

On the other hand, if the thrust of the dissent is directed to the court's charge, the limiting instruction it suggests must refer to Special Issue No. 3, which is the critical issue regarding the breach of good faith and fair dealing cause of action. The issue was answered by the jury as follows:

SPECIAL ISSUE NO. 3: Did Texas Farmers Insurance Co. breach the duty of good faith and fair dealing in the business of insurance with its insured, Richard R. Soriano, and was such breach, if any, a proximate cause of the excess Judgment against Richard R. Soriano in Webb County, Texas?

You are instructed that such breach occurs when there is no reasonable basis for a failure to pay a settlement demand or delay in payment or if there is a failure on the part of an insurance company to determine whether there is any reasonable basis for the failure to settle or delay.

Answer "Yes" or "No" by marking in the appropriate column.

YES NO

yes

If this is the case, the 1) no evidence, 2) waiver, and 3) abuse of discretion standards of review are necessarily implicated. We hold that the appellant has failed in its burden under any or all of the applicable standards of review.

In considering a "no evidence" or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex. 1965). Further, reasonable "[i]nferences may be drawn [by the trier of the facts] from actual facts proved." Beazley v. McEver, 238 S.W. 949, 952 (Tex.Civ.App. — Dallas 1922, no writ).

The record in the present case reflects the following evidence and reasonable inferences that the jury could believe: it was appellant's duty to offer Soriano the full extent of protection available under his insurance policy; there was no question that the limits of the policy were inadequate under the particular facts; it was conceded that of all the injuries sustained as a result of the accident, those received by Mr. Medina and Mrs. Medina were the most severe and, in fact, substantially exceeded the value of the entire policy coverage and the Lopez claim; the appellant was made clearly aware prior to the Lopez settlement that the Lopez family and the Soriano family were friends, and that it was very probable that the Lopez family had no intention of pursuing the lawsuit against the Sorianos; the Lopez claim was worth considerably less than the Medinas' claims, especially in view of the fact that Lopez was an adult child and had been drinking along with Soriano just prior to the accident; prior to the Lopez settlement, the appellant was clearly aware that the Medinas would not settle any of their four claims for less than the $20,000 that had originally been offered to them; the appellant had originally reserved the entire policy limits for the Medina family and, in fact, offered the Medina family the policy limits; that despite the recommendations of its attorney, the appellant refused to place the policy limits into the registry of the court, and instead, instructed its attorney to do nothing after filing the answer; and, appellant was advised by the Medina attorney that the Medinas were willing to settle their entire claim for the policy limits prior to the Lopez settlement.

Consequently, considering only the assigned error as presented by the appellant, we cannot agree that there is no evidence that the Lopez settlement was unreasonable, negligent, or made in bad faith when viewed from the totality of the surrounding circumstances.

Although the dissent concedes that normal application of the no evidence standard of review to these facts would require affirming the jury findings, it suggests that the charge should have limited the jury's consideration of the good faith and fair dealing issue to whether "the Lopez settlement was unreasonable and in bad faith, when viewed by itself." (Emphasis added.) Therefore, the 1) waiver and 2) abuse of discretion standards of review as they relate to an objection to the charge are brought into focus.

Texas Rule of Civil Procedure 277 provides that "[i]n all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict." Thus, the trial court has wide discretion in determining the proper issues and instructions to be submitted to the jury, Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 255 (Tex. 1974); Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 557 (Tex. 1972), and broad issues are the preferred manner of submission in negligence cases. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 554 (Tex. 1986); Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984). Simplicity in the jury charge must be an overriding concern. Lemos, 680 S.W.2d at 801. A charge is erroneous when it confuses and misleads the jury. H.E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501, 504 (Tex.Civ.App. — San Antonio 1949, writ ref'd n.r.e.). "A judgment should not be reversed because of the failure to submit other and various phases or different shades of the same question." Sheldon L. Pollack Corp. v. Falcon Indus., Inc., 794 S.W.2d 380, 383 (Tex.App. — Corpus Christi 1990, writ denied); Granado v. Madsen, 729 S.W.2d 866 (Tex.App. — Houston [14th Dist.] 1987, writ ref'd n.r.e.); TEX.R.CIV.P. 278. Clearly, the court here correctly submitted a valid broad issue to the jury as required by TEX.R.CIV.P. 277.

Further, it is the duty "of the trial court in submitting issues to the jury: First, to submit all the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling; and, third, to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue." Texas Pac. Ry. Co. v. Davis, 374 S.W.2d 305, 310 (Tex.Civ.App. — El Paso 1963, writ ref'd n.r.e.); TEX.R.CIV.P. 271, 272, 273. Therefore, what explanations and definitions of legal terms may be necessary to enable the jury to answer each issue is within the sound discretion of the court. Consequently, reversal will not lie because of an instruction being included or refused, in the absence of a showing of a clear abuse of discretion. "In a closely contested . . . case it is error to burden the jury with excess instructions which emphasize extraneous factors to be considered in reaching a verdict," and the error is harmful when it becomes "a comment on the weight of the evidence and the case as a whole." First Int'l Bank in San Antonio v. Roper Corp., 686 S.W.2d 602, 605 (Tex. 1985); Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).

In addition to making a proper objection, an appellant must submit a substantially correct definition or instruction in writing to the trial court prior to the case being submitted to the jury. Templeton v. Unigard Sec. Ins. Co., 550 S.W.2d 267, 269 (Tex. 1976); TEX.R.CIV.P. 273. A substantially correct instruction is "one that in substance and in the main is correct." Placencio v. Allied Indus. Int'l, Inc., 724 S.W.2d 20, 21 (Tex. 1987). It has also been held that a requested instruction is substantially correct if it can be properly submitted as worded. Yellow Cab Co. v. Smith, 381 S.W.2d 197, 198 (Tex.Civ.App. — Waco 1964, writ ref'd n.r.e.).

However, a review of this record reflects that appellant failed to submit any written requested instructions to the trial court limiting the jury's consideration as suggested by the dissent. Templeton, 550 S.W.2d at 269. The record further reflects that the appellant also failed to make the same objection to the trial court below in this regard that he now makes on appeal, and thus, waived this complaint. Aero Energy, Inc., 699 S.W.2d at 822.

We have attempted to follow the same Texas laws and appellate procedures which have served the Texas citizens for many years. However, the dissent would change and add to an insured's burdens, reduce the legal duties imposed upon an insurer by its own insurance policy, change this state's standards of review, consider unassigned error, revise this state's appellate procedures, and all after the case has been tried below. This court certainly does not have the authority to make all these changes. Indeed, it would be unfair, unjust, and untenable for any appellate court to change all the rules in the middle of the game, after the case has been fully tried in accordance with all the existing and time tested rules, even if it had the power to do so. Appellant's point of error is overruled.

Appellant next argues that the court committed reversible error in denying appellant's Motion for Instructed Verdict, appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motions to Disregard Jury Findings and for Judgment Notwithstanding the Verdict because the evidence is legally and factually insufficient to support findings of negligence, proximate cause, gross negligence, and breach of the duty of good faith and fair dealing.

Generally, when reviewing factual insufficiency contentions, "we must consider and weigh all of the evidence, including any evidence contrary to the trial court's judgment." Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). We may not substitute our conclusions for that of the trier of fact, Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), nor may we pass on the credibility of the witnesses or the weight to be given their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). We may not interfere with the trier of fact's resolution of conflicts in the evidence. Id. 239 S.W.2d at 792. Further, reasonable "[i]nferences may be drawn [by the trier of the facts] from actual facts proved." Beazley, 238 S.W. at 952. Thus, if there is competent evidence of probative force which supports the facts in issue, the findings of the trier of fact will be sustained unless we find the evidence insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool, 715 S.W.2d at 635; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (great weight and preponderance); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

"In determining that there is 'no evidence' to support a jury finding, the court must consider the evidence in the light most favorable to the finding, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences contrary to the finding." Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex. 1978); De Alonzo v. Solis, 709 S.W.2d 690, 692 (Tex.App. — San Antonio 1986, writ ref'd n.r.e.).

In the present case, Special Issue No. 1 inquired whether the appellant was negligent in the manner in which it handled the claims asserted for the death of Maria Medina and the injuries to Carlos Medina against its insured, Richard R. Soriano, and whether such negligence, if any, was a proximate cause of the excess judgment in Webb County, Texas, against Richard R. Soriano. The jury answered affirmatively. In view of the previously recited facts, we cannot say that the evidence is legally or factually insufficient to support the jury findings.

In response to Special Issue No. 2, which inquired whether "such conduct [was] gross negligence," the jury likewise answered affirmatively.

In Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981), the Texas Supreme Court defined gross negligence as "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons affected by it." Id. at 920. The court stated that "[t]he jury is not simplistically instructed that it must find an 'entire want of care,' but ' such an entire want of care as . . . shows the act or omission was the result of conscious indifference.' " Id. at 922 (emphasis in original). The court continued:

What lifts ordinary negligence into gross negligence is the mental attitude of the defendant. . . . The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn't care. Such conduct can be active or passive in nature.

Id. at 922 (emphasis added).

Moreover, in Burk Royalty Co., the court established standards for appellate review of a jury's gross negligence finding. The court stated:

In determining whether there is some evidence of the jury's finding of gross negligence, the reviewing court must look to all of the surrounding facts, circumstances, and conditions, not just individual elements or facts. . . . .

All actions or circumstances indicating a state of mind amounting to conscious indifference must be examined in deciding if there is some evidence of gross negligence.

Id.

Indeed, the exact definition espoused by the court in Burk Royalty Co. was employed by the court in the present jury charge. In addition to the facts previously enumerated, the record reflects the following evidence and reasonable inferences which the jury could believe: that several experienced attorneys, including the Medinas' attorney, testified that the actions of the appellant indicated conscious indifference and amounted to gross negligence; Huseman, the Medinas' attorney, further testified that he advised the appellant through its attorney that the Medinas were willing to settle all of their claims for $20,000, prior to the Lopez settlement; that appellant failed to notify Medina's attorney prior to settling the Lopez case, although appellant admitted that would have been the appropriate thing to do; that the appellant was aware that the Lopez family and the Soriano family were friends and that the Lopez family in all probability would not pursue the lawsuit; that the appellant knew when it settled the Lopez claim that its insured, Soriano, did not have adequate insurance under the circumstances and that Soriano faced great peril primarily from the Medina claims; that although the appellant knew that its insured would be personally liable for any amount in excess of the policy limits, the appellant, nevertheless, acted in such a manner as to expose its insured to a greater degree of liability from the Medinas' claims; and, that appellant's designated representative and claims manager, Philip Jackson, testified that even if a jury found appellant guilty of gross negligence and assessed punitive damages in the sum of six million dollars, appellant would nevertheless thereafter handle such a claim "exactly the same way."

Thus, the jury could have believed that the appellant "knew about the peril, but [its] acts or omissions demonstrated that [it] didn't care." Burk Royalty Co., 616 S.W.2d at 922. In light of these facts, we cannot say that the evidence is legally or factually insufficient to support the jury's finding of negligence, proximate cause, gross negligence, and breach of the duty of good faith and fair dealing. Appellant's point is refused.

Appellant further complains that the court erred in overruling its objections to submission of Special Issue No. 1 because it was unsupported by any written pleading, contrary to the theory the case was tried upon, and calculated to nudge the jury toward its insupportable finding of negligence.

Special Issue No. 1 inquired whether the appellant was negligent in the manner in which it handled the claim asserted for the death of Mrs. Medina and the injuries to Mr. Medina, and whether such negligence was a proximate cause of the excess judgment. As heretofore indicated in the discussion of appellant's initial point of error, appellant has waived any complaint as to the charge by expanding on appeal its objection below. Williams, 734 S.W.2d at 703.

Further, Plaintiff's Sixth Amended Original Petition states the following:

Farmers was derelict in its defense of Plaintiff and was specifically guilty or [sic] ordinary and gross negligence, such negligence including, but not limited to, the following:

1. In failing to settle the claim made against Plaintiff Soriano in such a way as to reduce the maximum potential exposure.

2. In failing to obtain maximum benefits from the insurance available to Plaintiff.

3. In the handling of the claims against Richard Soriano.

No special exceptions were filed in response to this pleading; therefore, the petition must be liberally construed in favor of Soriano. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); TEX.R.CIV.P. 45. A liberal construction of the petition in the present case supports the submission of Special Issue No. 1. Id. at 809. Moreover, this negligence issue was clearly not contrary to the theory upon which the case was tried.

Finally, appellant asserts that this issue "nudged" the jury toward its insupportable finding of negligence. Nevertheless, the standard of review in determining whether or not a jury question improperly persuaded the jury by virtue of an incidental comment on the weight of the evidence is whether the court abused its discretion. Department of Human Serv. v. E.B., 802 S.W.2d 647 (Tex. 1990).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984). Rather, a trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Downer, 701 S.W.2d at 241-43; Cessna Aircraft Co., 665 S.W.2d at 443; Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App. — Corpus Christi 1976, no writ); King v. Guerra, 1 S.W.2d 373, 376 (Tex.Civ.App. — San Antonio 1927, writ ref'd). In ascertaining whether the trial court abused its discretion, the reviewing court must determine if the trial court acted without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986).

In view of the guiding principle that requires that broad form questions be used when feasible and the totality of the circumstances, we fail to see, and the appellant has failed to point out or establish, how the trial court abused its discretion in submitting Special Issue No. 1. Appellant's point is rejected.

Appellant also argues that the court erred in overruling appellant's objections to the instruction submitted under Special Issue No. 3 because it was unsupported by any written pleading and was calculated to confuse the jury into making its insupportable bad faith finding.

Special Issue No. 3, previously set out verbatim, inquired whether appellant breached its duty of good faith and fair dealing in the business of insurance with its insured, Soriano, and whether such a breach was a proximate cause of the excess judgment entered against him.

Plaintiff's Sixth Amended Original Petition states:

Richard Soriano was an omnibus insured under the contract of insurance which

Texas Farmers Insurance Company wrote and for which it collected premiums and out of such contract, there arose a duty on the part of Defendant to deal fairly and in good faith with Richard Soriano. In this connection, Plaintiff pleads that there was no reasonable basis for denial of the claims arising out of the accident in question which it could have settled within policy limits but did not settle and no reasonable basis for the delay in payment of same and there was a failure on the part of Texas Farmers Insurance Company to determine whether there was any reasonable basis for such denial and/or delay. Such knowing and conscious denial and delay constituted a breach by Defendant of its duty of good faith and fair dealing, proximately causing Plaintiff's damages as set forth hereinafter and giving rise to exemplary damages as set forth hereinafter.

As no special exceptions were filed, we must liberally construe the pleadings. Roark, 633 S.W.2d at 809. Upon doing so, we find that the pleadings do support the issue submitted. Moreover, the appellant has failed once again to show an abuse of discretion by the trial judge in submitting this issue. Department of Human Serv. v. E.B., 802 S.W.2d 647 (Tex. 1990). Accordingly, we overrule this point as well.

In appellant's next point of error, appellant contends that the court committed reversible error in overruling appellant's objections to the instruction submitted under Special Issue No. 9 because it erroneously instructed the jury to include as damages the full amount of the Webb County judgment, thereby depriving the jury of discretion to award a lesser amount of zero.

Specifically, appellant contends on appeal that "neither the law nor this record support an award of actual damages to Soriano" because "when: (1) the insurer provides a defense to its insured; and (2) the third party claimant agrees not to execute against the insured," and thus "there is no injury to the insured as a matter of law. Foremost, 897 F.2d 754."

As previously stated, in order to preserve error, "[a] party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection." Aero Energy, Inc., 699 S.W.2d at 822 (emphasis added); TEX.R.CIV.P. 274.

Further, under TEX.R.CIV.P. 273, an appellant must also present for a trial court's ruling, a substantially correct request for question, definition, or instruction prior to the case being submitted to the jury, separate and apart from the objections to the charge. Templeton, 550 S.W.2d at 269; TEX.R.CIV.P. 273. "Violation of Rule 273 precludes appellate review of the request for a special issue and the request for an instruction to the jury." Id. "A party is confined to the grounds of objection stated in the trial court, and will not be able to enlarge his complaint on appeal." Williams, 734 S.W.2d at 703; Perez v. Baker Packers, 694 S.W.2d 138, 141-42 (Tex.App. — Houston [14th Dist.] 1985, writ ref'd n.r.e.).

A review of the record to which appellant directs this court, fails to disclose that 1) any agreement involving an alleged covenant not to execute was ever introduced into evidence and, it is therefore not before this court; and 2) a distinct objection on the grounds now asserted on appeal was ever presented for the trial court's consideration and ruling as required by TEX.R.CIV.P. 274, which presents nothing for review. Aero Energy, Inc., 699 S.W.2d at 822. In fact, the record reflects not only that no agreement involving an alleged covenant not to execute was ever introduced into evidence, but that the trial court was never presented with any argument involving an agreement with an alleged covenant not to execute either by objections to the charge, or pursuant to the subsequent post trial motions. Moreover, no written issue, definition, or instruction was ever presented to the trial court involving any agreement with an alleged covenant not to execute as required by TEX.R.CIV.P. 273, which presents nothing to review as to a failure to instruct. Templeton, 550 S.W.2d at 269.

Although the dissent concedes that no agreement involving a covenant not to execute was ever introduced in trial, and that the trial court was never specifically apprised by the appellant that the alleged agreement with a covenant not to execute was a ground for any objection to the instruction or any subsequent relief sought, the dissent nevertheless insists in making this phantom agreement a cornerstone of its demand for a reversal and rendition of this judgment.

The dissent insists that this appellant has satisfied its burden on appeal pertaining to all the provisions of the alleged agreement by simply eliciting a "correct" answer from Soriano to an inquiry as to whether, as a result of an assignment [not introduced], Soriano "didn't have to worry about having to pay that judgment off any more." First, Soriano was not shown to have any legal expertise or ability to interpret any contract; second, even a legal expert could not furnish all the provisions of a contract with such a simple answer; and third, if Soriano was appealing and attempted to satisfy his burden pertaining to the provisions of such an agreement with the same simple answer without introducing the instrument which speaks for itself, it would certainly likewise be insufficient.

The dissent stretches the rules drastically, insisting that the following objection to the charge sufficiently preserves the error asserted for the first time on appeal:

Defendant objects to special issue number 9 because the inquiry therein instructs the jury to award damages resulting from an excess judgment. The jury is not given the discretion of awarding an amount less than the excess judgment or zero.

Clearly, the purpose of rules 273 and 274 is to prevent the ambushing of a trial judge with vague and indefinite objections and grounds so that the trial court can have a fair opportunity to correct any possible error at trial, thus preventing unnecessary appeals. TEX.R.CIV.P. 273, 274. However, in order to accomplish this, the trial court must not only be distinctly apprised of what the objection is, but also of the distinct grounds upon which the objection is based, since no objection should be sustained without proper grounds.

While the trial court here may have been made aware by this objection that the appellant was objecting to the jury instruction, this objection cannot be considered to be distinct as to the grounds now asserted on appeal for the first time, especially considering that the alleged agreement was never introduced into evidence and was never asserted as grounds at any other time. This ground is clearly asserted on appeal for the first time, and as an enlargement of appellant's objections below, should not be grounds for appellate relief. Surely, if the appellant really intended to assert this ground before the trial court, it should be required to at least give the trial judge some sort of glimpse of it by either introducing the instrument, or specifically asserting it at some point in the trial. Playing hide and seek with the trial court should not be condoned, and the dissent stretches the rules in its efforts to justify reversing and rendering. Therefore, appellant will be "confined to the grounds of objection stated in the trial court, and will not be able to enlarge his complaint on appeal." Williams, 734 S.W.2d at 703; Perez, 694 S.W.2d at 141-42. Furthermore, in addition to failing to properly preserve this point of error, appellant misplaces its reliance entirely on Foremost County Mut. Ins. Co., 897 F.2d at 759, to sustain its position.

In Foremost County Mut. Ins. Co., claimant Porcayos obtained a judgment in excess of the coverage against Butler, the insured. Id. at 755. Butler was insured by both Home Indemnity Company and Foremost County Mutual Insurance Company. Id. Foremost refused to defend Butler and Home tendered a defense to Butler under its workers' compensation policy but did not indicate to Butler that there might be liability coverage under its general policy. Id. Both Home and Foremost refused settlement offers within their policy limits, which were $250.000. Id.

Prior to trial, an instrument with a covenant not to execute, which was drafted by Home lawyers, was signed by the parties wherein Porcayos agreed not to execute against Butler, and Butler assigned to Porcayos any rights he might have against Foremost (but not against Home). Id. After a judgment was rendered against Butler in excess of the policy limits, Foremost settled with Porcayos for $3,200,000, which was still in excess of the limits. Id. at 756.

Foremost then sought and obtained a summary judgment against Home for one half of the settlement based upon the contention that Home was a co-insurer, as well as the application of the Stowers doctrine. Id. The appellate court reversed the summary judgment, holding that Foremost was only entitled to $125,000, which was one half of the policy limits. Id. at 762.

In so doing, the court in Foremost County Mut. Ins. Co. 1) concluded that "[i]t [was] doubtful that negligence or bad faith was established in the instant case," and 2) concluded that Texas law recognizes the Stowers theory upon which the case before us was tried; 3) refused to extend the YMCA rule to apply between co-insurers under the attending circumstances; 4) refused to decide the issue herein involved, which the dissent suggests was therein decided; and 5) specifically declared that their holding should only be used to the disadvantage of another insurer, but not to the disadvantage of the insured. Id. at 757.

Thus, Foremost County Mut. Ins. Co. is clearly not controlling and obviously completely distinguishable from the case at hand.

Moreover, the measure of damages awarded in cases such as the one before us has been confirmed in Allstate Ins. Co. v. Kelly, 680 S.W.2d 595, 606 (Tex.App. — Tyler 1984, writ ref'd n.r.e.), and has been described as follows:

The rule announced in Kelly is that in a case based upon the Stowers doctrine, in which an insured sues his insurer on the basis of a negligent failure to settle, the damages are, as a matter of law, the amount of the judgment which exceeds the policy limits.

William M. Mercer, Inc. v. Woods, 717 S.W.2d 391, 400 (Tex.App. — Texarkana 1986), aff'd in part, rev'd in part on other grounds, 769 S.W.2d 515 (Tex. 1988) (emphasis added).

Finally, even if we ignored all the foregoing and agreed that there was error in the instruction and it was properly preserved, since the evidence of the judgment and how it exceeded the policy limits was uncontradicted, we are convinced that the error, if any, did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of any improper judgment in the case. TEX.R.APP.P. 81(b)(1).

Accordingly, appellant's point of error is rejected.

Appellant also complains that the court erred in rendering judgment against appellant, in overruling appellant's Motion to Disregard Jury Findings and in overruling appellant's Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the finding of actual damages.

In Kelly, 680 S.W.2d at 606, the Tyler court, which was likewise faced with a damage issue in a Stowers suit, recognized that "no actual damage issue was required to be submitted because the actual damages sustained . . . under each cause of action asserted herein were fixed as a matter of law in the amount of the excess of the judgment rendered . . . over the applicable policy limits."

Further, in assessing personal injury damages, the jury necessarily has great discretion in fixing the amount of the damage award. Bundick v. Weller, 705 S.W.2d 777, 783 (Tex.App. — San Antonio 1986, no writ), citing Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App. — Corpus Christi 1978, writ ref'd n.r.e.). There is no fixed guide or rule in measuring damages; thus, the amount determined by the jury is subject to correction only for abuse or excessiveness. Landreth v. Reed, 570 S.W.2d 486, 492 (Tex.Civ.App. — Texarkana 1978, no writ). However, a jury's findings on damages will not be disturbed on appeal on grounds of excessiveness if there is any probative evidence to sustain the award. TriState Motor Transit Co. v. Nicar, 765 S.W.2d 486, 493 (Tex.App. — Houston [14th Dist.] 1989, no writ). We emphasize, moreover, that it is for the jury to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the evidence. Town Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 656 (Tex.App. — Fort Worth 1985, no writ). Therefore, in determining the sufficiency of the evidence, appellate courts must accept the jury's resolution of any conflicts or inconsistencies in the evidence. Pool, 715 S.W.2d at 629.

In the present case, the jury clearly found that there was evidence that Soriano had suffered actual damages, but refused to find any damages of mental anguish in the past. We hold that the evidence and reasonable inferences in this record is legally and factually sufficient to support the actual damages award, and that the award of actual damages was not excessive. The point is rejected.

Next, appellant multifariously asserts that the court erred in denying appellant's objections to the charge, in rendering judgment against the appellant, and in overruling appellant's Motion for Judgment Notwithstanding the Verdict because there is no finding and insufficient evidence that any vice principal of the appellant committed conduct for which exemplary damages may be awarded and, alternatively, the answer to Special Issue No. 6 conflicts with the liability findings against the appellant, in which case the trial court erred in overruling appellant's Motion for New Trial.

However, the record reflects, among other things, that Philip Jackson, as appellant's representative and claims manager, had the authority, as well as the ultimate responsibility, to hire and fire; that Jackson made the decision to settle the Lopez claim with full knowledge of the consequences to the insured, Soriano; that Jackson spoke for the appellant in declaring that regardless of whether a jury found appellant's action to be grossly negligent and assessed six million dollars in exemplary damages, appellant would nevertheless act in the same manner towards its insured in the future; and, that Jackson's conduct throughout the process, which the jury concluded amounted to gross negligent and a breach of its duty of good faith and fair dealing, was all on behalf of the appellant.

Additionally, appellant's judicial admissions contributed to show the requisite knowledge to make it liable for punitive damages. Therefore, because the issue concerning the existence of a vice principal, who was acting on the part of the appellant, was conclusively established by the evidence, no issue was required to be submitted by the court. City of Wichita Falls v. Ramos, 596 S.W.2d 654, 658 (Tex.Civ.App. — Ft. Worth 1980, writ ref'd n.r.e.).

In the alternative, appellant argues that Special Issue No. 6 conflicts with the liability findings against the appellant.

Special Issue No. 6 inquires:

Was Fred C. Auforth, deceased, negligent in a manner in which he handled the settlement of claims against Richard R. Soriano and was such negligence, if any, a proximate cause of excess judgment in Webb County, Texas against Richard R. Soriano?

Answer "Yes" or "No" by marking in the appropriate column. YES NO

no

Appellant argues that because the jury found that Auforth, appellant's trial attorney, was not negligent in his handling of the case, the trial court should have found the jury's findings that the appellant was liable to be in conflict with the jury's answer to Special Issue No. 6.

However, the record reflects that Auforth, apparently recognizing the potential danger for a bad faith suit due to the multiple claims and the inadequate insurance coverage, recommended in vain that the appellant place the insurance proceeds into the registry of the court. While not only being the most prudent action, this would have evidenced the appellant's willingness to proceed with caution in all deference to its insured's rights and welfare. Moreover, it is clear that the ultimate decisions to refuse to place the proceeds in the registry of the court, and to make the settlement in question, were made by the appellant and not their attorney.

Furthermore, it is clear that the appellant had an independent duty to protect Soriano against the Medinas' claims, which was not discharged by the mere hiring of an attorney. Highway Ins. Underwriters v. Lufkin-Beaumont Motor Coaches, Inc., 215 S.W.2d 904, 932 (Tex.Civ.App. — Beaumont 1948, writ ref'd n.r.e.) (op'n on reh'g) (the insurer assumes control of insured's defense, and any responsibility incidental to this control remains with the insurer). Accordingly, appellant's point is overruled.

Appellant additionally argues that the court erred in rendering judgment against appellant and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict and Motion for New Trial because Special Issue No. 4, that appellant acted intentionally and knowingly, is not supported, either legally or factually, by the evidence.

Requests for Admissions 9a and 9b, regarding the appellant's intentional and knowing conduct, state the following:

REQUEST NO. 9: Admit or deny that Farmers intentionally and knowingly settled the Lopez death claim at a time when:

(a) The claims for the death of Maria Medina and the injuries to Carlos Medina could have been settled for policy limits totaling $20,000.00;

(b) Farmers knew the Lopez settlement would reduce the insurance coverage on its policy to a figure below that needed to meet the settlement offer for such Medina claims.

In the Defendant's Response to Requests for Admissions and Interrogatories, appellant admitted to both 9a and 9b. Additionally, the record reflects that although the appellant knew and was informed by its attorney of a possible bad faith claim arising under these facts, the appellant failed to heed its attorney's advice to deposit the policy limits into the registry of the court. Instead, the appellant knowingly settled a lesser claim with full knowledge of the consequences to the insured, exposing the insured to greater harm. Appellant's point is overruled.

Appellant next complains that the trial court erred in rendering judgment against appellant, and in overruling appellant's Motion to Disregard Jury Findings, Motion for Judgment Notwithstanding the Verdict, and Motion for New Trial or for suggestion of remittitur because the evidence is legally and factually insufficient to support the excessive award of $5,000,000 in exemplary damages and further, the exemplary damages award violated appellant's right to due process and equal protection under the Texas and federal constitutions, as well as the prohibition against excessive fines contained in TEX.CONST. art. I, § 19.

Initially, we note that the United States Supreme Court has recently held that the common law method for assessing punitive damages is not so inherently unfair as to deny due process and be per se unconstitutional, stating that "[a]s long as the discretion is exercised within reasonable constraints, due process is satisfied." Pacific Mut. Life Ins. Co. v. Haslip, ___ U.S. ___, ___ _ ___, 111 S.Ct. 1032, 1043-44, 113 L.Ed.2d 1 (1991).

In the case before us, the jury was properly instructed that

'GROSS NEGLIGENCE' means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it; and, that 'EXEMPLARY DAMAGES' means an amount that you may, in your discretion, award as an example to others and as a penalty or by way of punishment.

We hold that these were "reasonable constraints" within which the jury could exercise its discretion in imposing reasonable exemplary damages.

However, the supreme court, obviously concerned with runaway fact finders, also contemplated a careful appellate review for reasonableness of the exemplary damages, stating:

Under the traditional common-law approach, the amount of the punitive award is initially determined by a jury instruction to consider the gravity of the wrong and the need to deter similar wrongful conduct. The jury's determination is then reviewed by trial and appellate courts to ensure that it is reasonable. . . . .

We note again our concern about punitive damages that "run wild." . . .

One must concede that unlimited jury discretion — or unlimited judicial discretion for that matter — in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities. . . . .

This appellate review makes certain that the punitive damages are [1] reasonable in their amount and [2] rational in light of their purpose to punish what has occurred and to deter its repetition.

Haslip, ___ U.S. at ___, ___ _ ___, 111 S.Ct. at 1042-43, 1045.

In Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981), the Texas Supreme Court directed that appellate review proceed along these lines:

Exemplary damages must be reasonably proportioned to actual damages. There can be no set rule or ration between the amount of actual and exemplary damages which will be considered reasonable. This determination must depend upon the facts of each particular case. Factors to consider in determining whether an award of exemplary damages is reasonable include (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.

Whether the amount of damage awarded by the jury is excessive is a question of fact.

Id. at 910 (citations omitted). The Texas Supreme Court has reaffirmed this approach to appellate review of exemplary damages. See Wright v. Gifford-Hill Co., Inc., 725 S.W.2d 712, 714 (Tex. 1987); Tatum v. Preston Carter Co., 702 S.W.2d 186, 188 (Tex. 1986).

Further, in determining whether a damage award is excessive, the appellate court must view the evidence and facts of the case in the light most favorable to the damage award. Chemical Express v. Cole, 342 S.W.2d 773, 780 (Tex.Civ.App. — Dallas 1961, writ ref'd n.r.e.). While exemplary damages must be carefully reviewed for reasonableness, the amount to be awarded as exemplary damages generally rests in the discretion of the jury, Southwestern Inv. Co. v. Neeley, 452 S.W.2d 705, 708 (Tex. 1970), and will not be disturbed on appeal on the grounds of excessiveness if there is probative evidence to support it. See Delta Drilling Co. v. Cruz, 707 S.W.2d 660, 666 (Tex.App. — Corpus Christi 1986, writ ref'd n.r.e.). Further, "unless the award is so large as to indicate that it is a result of passion, prejudice, or that the evidence has been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal." Kraus v. Alamo Nat'l Bank, 586 S.W.2d 202, 208 (Tex.Civ.App. — Waco 1979), affirmed and cited with approval, Alamo Nat'l Bank v. Kraus, 616 S.W.2d at 910.

Under TEX.R.APP.P. 85, remittitur may be ordered by an appellate court only if it finds that the trial court abused its discretion in refusing to suggest a remittitur. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 864 (Tex.App. — Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988).

In Texaco, the court held that the trial court abused its discretion in not suggesting remittitur where there was no evidence that the tort feasor intended to injure, but merely "cared little if such injury resulted from its interference". Id. at 864. The court stated that even though "[t]he punitive damages only amounted to approximately 40% of actual damages," . . . "[c]onsidering the type of action, the conduct involved, and the need for deterrence" a point had been reached "where punitive damages . . . overstate[d] their purpose and serve[d] to confiscate rather than to deter or punish." Id. at 866.

Among other things heretofore set out, the record before us reflects that appellant knowingly and intentionally settled the Lopez case, in spite of the fact that the other outstanding claims were extremely more severe and that the Lopez claim would probably not be pursued; that appellant knew it was exposing the appellee to considerable personal liability upon settling the Lopez claim; that the Lopez settlement was settled over the disapproval of Soriano's personal attorney; that appellant earned premiums exceeding $53,000,000 in 1987; and, that the appellant insisted that it would handle a similar case exactly the same way in the future, even if it were assessed punitive damages in the amount of six million dollars.

In determining whether the trial court abused its discretion in failing to suggest remittitur, we must consider all the factors of Kraus and the totality of the record. In addition to all that has been set out heretofore, we note that the jury awarded $235,479.13 as actual damages with interest, and $5,000,000.00 as exemplary damages, which is a ratio of more than 21 to 1. Further, although there was evidence from which the jury could have reasonably concluded that appellant "cared little if injury resulted," there was no evidence of actual animosity of the appellant towards either Soriano or the Medinas. Texaco, 729 S.W.2d at 864. Moreover, the record clearly indicates that it was the negligence of Soriano, brought on primarily by his drinking, that caused the terrible accident that initiated this entire process. On the other hand, considering the deterrence factor, we are considerably troubled, as apparently the jury was, with the insistence of appellant's claims manager, that appellant would be undeterred in continuing this same course of action even if assessed six million dollars in punitive damages.

Nevertheless, after a careful review of the totality of the evidence as required by the United States Supreme Court in Haslip, and considering the factors espoused by the Texas Supreme Court in Kraus, we conclude that the punitive damages assessed are excessive and that the trial court abused its discretion in not suggesting a remittitur. We find that the exemplary damages assessed are inconsistent with the degree of appellant's culpability, with the punishment for what has occurred, and with the desired deterrent effect on its repetition. We hold that in this case, punitive damages of one million dollars are sufficient to satisfy all reasons for their being awarded. The award of punitive damages is excessive by four million dollars. The point is sustained.

Finally, appellant insists that the trial court committed reversible error in overruling appellant's Motion to Modify, Correct, or Reform the judgment because of the judgment award's excessive and duplicative interest.

The trial court submitted the damage question with an instruction which read:

What sum of money if now paid in cash would fairly and reasonably compensate Richard R. Soriano for his damages by reason of the trial in Webb County, Texas the resulting excess judgment.

Take into consideration the following elements of damages and none other[:]

The difference between the excess judgment taken against Richard R. Soriano with interest to date, and the amount paid by Texas Farmers Insurance Co. toward satisfaction of such judgment. (Emphasis added.)

No objection was made to the inclusion of the words "with interest to date," nor was an alternate instruction submitted. Nevertheless, appellant argues that the jury improperly awarded Soriano pre-judgment interest and in effect, improperly awarded pre-judgment interest twice.

As recognized by the Tyler Court of Appeals, Stowers allows recovery for post-judgment interest. Kelly, 680 S.W.2d at 611, citing G.A. Stowers Furniture Co. v. American Indem. Co., 15 S.W.2d 544 (Tex.Comm'n App. 1929, holdings approved). In Kelly, the court was confronted with a Stowers suit wherein the plaintiff sought post judgment interest. Id. The court found that the plaintiff's petition, which sought recovery for damages, including interest and court costs, stated a cause of action for the amount sued for and, therefore, post judgment interest was recoverable. Id.

In the present case, Soriano's petition reflects that Soriano was seeking "the full amount of his damages." Accordingly, we see no reason why, and the appellant has failed in its burden of showing a valid reason why, the appellee should be precluded from recovering post judgment interest.

However, we agree with the appellant that the judgment before us awards prejudgment interest twice. Special Issue Nine instructed the jury as following regarding damages:

Take into consideration the following elements of damages and none other.

The difference between the excess judgment taken against Richard R. Soriano with interest to date, and the amount paid by Texas Farmers Insurance Co. toward satisfaction of such judgment.

Answer in dollars and cents, if any.

ANSWER: $ 235,479.13

The jury award of $235,479.13 obviously includes prejudgment interest from the date of the excess judgment taken against Richard Soriano in January 24, 1982, through the date of the jury verdict before us.

The trial court's judgment in the present case, dated January 12, 1990, awards actual damages of "$520,577.24 (such amount being $235,479.13 actual damages found by the jury plus pre-judgment interest thereon at 10% per annum, compounded daily from January 24, 1982 to date of this judgment ) plus the sum of FIVE MILLION ($5,000,000) DOLLARS found by the jury as exemplary damages, for a total of $5,520,577.24. . . ." (Emphasis added.)

In other words, the jury verdict in December 1989 awarded pre-judgment interest from January 24, 1982 and then the trial court's judgment, in January 1990, awarded it again. That is a double recovery of prejudgment interest and Farmers' failure to object to the special issue did not waive its right to insist in its Motion to Correct, or Reform the Judgment that the judgment not award prejudgment interest a second time.

The trial court should have awarded prejudgment interest in its judgment only from the date of the verdict to the date of the judgment before us, since the jury verdict had already awarded pre-judgment interest for any time prior to that, which had already been incorporated in the judgment. Therefore, the judgment should be reformed by subtracting from the judgment the prejudgment interest previously awarded by the jury in its verdict, and including in the judgment only the prejudgment interest from the date of the verdict to the date of the judgment.

Consequently, if within 30 days from the date of this opinion, appellees file in this Court a remittitur of four million dollars, the judgment of the trial court will be ordered reformed 1) to reduce the exemplary damages to one million dollars, and 2) to eliminate prejudgment interest assessed twice, as reflected in this opinion; and as reformed, will be affirmed; otherwise, the judgment will be reversed, and the cause remanded for a new trial.

. . . .

Whether the YMCA rule is applied is material only where there is a covenant not to execute. If no covenant not to execute is forthcoming, the insurer will be responsible for the entire judgment, including any excess over the policy limits, and plaintiff will be aware of this. Thus, in order to induce the plaintiff to enter a covenant not to execute, the insurer must either accept an admission of liability (which is effectively equivalent to a settlement) or permit itself to be exposed to damages in excess of policy limits (which returns the insurer to the Stowers situation). [Emphasis in text.]