Wetherbee

This is the second appeal by defendant insurer, after this court, in Wetherbee v. United Insurance Co. of America, 265 Cal.App.2d 921 [ 71 Cal.Rptr. 764 ], affirmed the judgment in favor of plaintiff and directed a retrial as to the amount of punitive damages, which the jury had found to be $500,000. The insurer now contends that: 1) the trial court erred in its instructions to the jury and exclusion of certain proffered evidence; 2) the award of $200,000 punitive damages was excessive; and 3) it was deprived of a fair trial.

As the parties agree that on retrial the evidence adduced was substantially the same as at the time of the first trial, we adopt the statement of facts contained in our prior opinion in this case, reported in 265 Cal.App.2d 921 , at page 924, to the end of the first full paragraph on page 927.

We turn first to the contentions relating to the jury instructions and evidence. Defendant argues that the trial court erred in instructing the jury that plaintiff was entitled to punitive damages, and only the amount was in issue at retrial. Defendant contends that this instruction improperly removed from the jury’s consideration the question of whether or…