Best Formed Plastics, LLC, and Jane Stewart v. George Shoun , 2016 Ind. App. LEXIS 41 ( 2016 )

Feb 16 2016, 8:34 am
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Bradford R. Shively Patrick F. O’Leary
Jonathan R. Slabaugh Goshen, Indiana
Sanders • Pianowski, LLP
Elkhart, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Best Formed Plastics, LLC, and February 16, 2016
Jane Stewart, Court of Appeals Case No.
Appellants-Defendants, 20A03-1506-PL-651
Appeal from the Elkhart Superior
v. Court
The Honorable Gretchen S. Lund,
George Shoun, Judge
Appellee-Plaintiff
The Honorable Thomas A. Murto,
Magistrate
Trial Court Cause No.
20D04-1302-PL-45
Crone, Judge.
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Case Summary
[1] Best Formed Plastics, LLC (“BFP”) and Jane Stewart appeal the trial court’s
entry of judgment on jury verdicts in favor of their former employee George
Shoun. Shoun sustained a shoulder injury while at work and subsequently filed
a worker’s compensation claim. His employment was later terminated. He
sued BFP and Jane, one of its owners, for retaliatory discharge, defamation,
and invasion of privacy by false light, claiming among other things, that he was
fired in retaliation for filing a worker’s compensation claim.
[2] Following a trial, the jury found in Shoun’s favor on the retaliatory discharge
and invasion of privacy claims and awarded him a total of $412,680 in
compensatory and punitive damages. On appeal, BFP asserts that the trial
court erred as a matter of law in entering judgment on the jury’s verdict against
BFP for retaliatory discharge. BFP and Jane also contend that the trial court
abused its discretion in refusing certain jury instructions. Finally, BFP and Jane
claim error regarding the damages awards. Finding no error or abuse of
discretion, and determining that BFP and Jane have waived one of their
assertions of error, we affirm.
Facts and Procedural History
[3] The relevant facts favorable to the verdicts indicate that BFP is a family-owned
plastic fabricating business operated in Elkhart. Jimmy Stewart established
BFP in the fall of 2006. He is the president and 50% owner of the company; his
wife Jane is the secretary and treasurer and 48% owner; and his son Jeb is the
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production manager and 2% owner. Shoun began working for BFP in June
2007. Shoun was a high school friend of Jimmy’s and had continued to be a
close friend through the years, even serving as the best man in Jimmy and
Jane’s wedding. Prior to commencing his employment at BFP, Shoun received
specific training on the operation of a type of plastic fabricating machine called
a CNC machine. While working at BFP, Shoun performed various duties
including operating a double-table CNC machine, driving a truck for deliveries,
repairing and maintaining equipment, and designing programs for the
machines. Shoun’s primary work over the last several years, however, involved
operating an automatic thermoforming machine.
[4] The automatic thermoforming machine was akin to a large oven. To operate
the machine, Shoun was required to lift pieces of raw plastic material and place
them into molds. Most of the pieces of raw plastic were between two and ten
pounds, with a few being around fifteen pounds. On very rare occasions, a
piece of plastic would weigh over twenty-five pounds. In addition to lifting and
moving raw plastic material, Shoun was required to set molds into and remove
molds from the thermoforming machine. Because a single mold could weigh
up to 800 pounds, Shoun used a forklift to both set and remove molds. Shoun’s
operation of the thermoforming machine did require some overhead lifting.
[5] On Friday, March 9, 2012, fifty-eight-year-old Shoun fell and dislocated his
shoulder while attempting to secure an airline that had come loose from the
automatic thermoforming machine. Shoun remained off work for one week
and returned to work with medical restrictions on Monday, March 19, 2012.
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He was prohibited from lifting more than five pounds with his left arm and
from performing overhead lifting. Accordingly, Shoun performed duties such
as sanding, drilling, counting, numbering, and packaging small parts. It was
determined that Shoun would perform this light-duty work until, May 21, 2012,
the day before he was scheduled to take medical leave for shoulder surgery.
[6] On May 14, 2012, Jane sent an email to BFP’s insurance agent regarding
Shoun’s upcoming surgery and medical leave and the possible financial
repercussions that a worker’s compensation claim could have on BFP. Jane
wrote,
After my conversations with you last week, we decided it would
be in the best interest of BFP to pay George Shoun[’]s payroll
directly after his surgery rather tha[n] Workmans Comp pay his
w[a]ges in order to lessen the hit on our premium for the next
couple of years.
I just got off the phone with the Workmans Comp contact an[d]
she advised me that after George’s surgery and recovery, he will
be awarded when the claimant is at medical maximum
improvement a “Permanent Par[tial] Impairment Rating” and
could be awarded anywhere between $5000 - $14,000.00! This
money would come from the Workmans Comp fund or from
[BFP]. No one knows the exact amount until the end of the
process.
Based upon this new infor, I am not sure we should pay George
directly. I am just [wanting] to do the right thing to lessen any
more costs to BFP.
Appellee’s App. at 62.
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[7] Also, while Shoun was working the day before his scheduled surgery, Jeb
Stewart accused Shoun of “buffalo[ing]” the doctors and the insurance
company and that he had “everybody fooled.” Tr. at 652. Jeb told Shoun that
he knew better and that there was nothing wrong with him because “a woman
can shove a baby head out of her p***y and in five (5) days be back to work.”
Id. On May 22, 2012, Shoun had surgery on his shoulder and began receiving
payments through worker’s compensation.
[8] While Shoun was on medical leave following surgery, Shoun was contacted by
his worker’s compensation caseworker who informed him that BFP had a
position open for a CNC operator. The CNC machine operation involved
fabricating parts that weighed only a few pounds each and could be done within
Shoun’s continued medical restrictions of lifting no more than five pounds with
his left arm and no overhead lifting. Accordingly, Shoun reported back to work
at BFP on August 13, 2012. A few days later, Jeb angrily approached Shoun
and told him that, while he was gone, he had “cost the company a lot more
than just production.” Id. at 656. Thereafter, Jeb seemed continually mad at
Shoun and treated him poorly. Shoun felt as if Jeb was intentionally harassing
him so, on August 29, Shoun told one of the worker’s compensation insurance
adjusters about it. The adjuster told Shoun that she was going to “make a call
because this ha[s] to stop.” Id. at 659. The following day, Jimmy and Jeb
confronted Shoun with two disciplinary incident reports written about Shoun
that alleged incidents on August 22 and 28. Shoun disputed the claims in both
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reports but was told by Jeb that he had no choice but to sign and acknowledge
the reports.
[9] Shoun continued to work at BFP as a CNC operator, under the same medical
restrictions as before, until September 17, 2012. Jeb approached Shoun at the
end of his shift and told him that BFP would not have any work for him for the
rest of the week. Unbeknownst to Shoun, the next day, Jane spoke with the
worker’s compensation insurance adjuster and told her that “due to lack of
work,” BFP would not have Shoun come in for the remainder of the week and
likely not the following week either, but that if “sales rise, we will bring him
back.” Appellee’s App. at 23. No other employee of BFP was told that their
services were no longer needed due to this alleged downturn in sales. In fact,
BFP’s tax returns show that sales steadily increased between 2012 and 2013.
That same day, Jane told BFP’s insurance agent to cancel “all insurance” for
Shoun. Id. at 20. Shoun returned to work on Monday, September 24, 2012.
Jeb simply told Shoun that there was no work for him and that it may be a
couple of weeks before BFP would have more work. When Shoun’s girlfriend,
Cathy, learned of the insurance cancellation, she called Jane for an explanation.
Jane told Cathy that Shoun’s “employment here has been terminated” and that
he “will never work here again.” Tr. at 544.
[10] In mid-December 2012, Jimmy sent a letter to Shoun in response to a request
from Shoun for a summary of his 2012 wages. Jimmy began the letter,
We have heard from many people of your displeasure with this
whole work injury situation, advising all whom you have spoken
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to as you put it, “we are [f***king] you.” This along with you
are milking the workmans comp issue since you could make
more money staying at home and selling weed.
Appellee’s App. at 79.
[11] On February 14, 2013, Shoun filed a complaint for damages against BFP
alleging that BFP wrongfully terminated his employment by firing him in
retaliation for making a worker’s compensation claim. On February 19, Jane
made a post to her Facebook account that read:
Isn’t it amazing how Jimmy experienced a 5 way heart bypass
just one month ago and is back to work, especially when you
consider George Shoun’s shoulder injury that kept him away
from work for 11 months and now he is trying to sue us. Love
for everyone to hear the real truth! What a loser!
Id. at 24. This post remained on Jane’s Facebook account for seventy-six days
until she took it down on May 6, 2013.
[12] Shoun subsequently filed an amended complaint against BFP and Jane and
added claims for invasion of privacy by false light and defamation. In October
2014, BFP moved for summary judgment on the retaliatory discharge claim.
That motion was denied by the trial court. A four-day jury trial began in
January 2015. During trial, among other things, Shoun testified that he
performed various jobs when he was originally hired by BFP and that there was
“no doubt” in his mind that he could still operate the thermoforming machine
despite his current medical restrictions. Tr. at 648. Shoun explained to the jury
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in detail how the thermoforming machine operated. He also explained how his
medical restrictions applied only to his left arm and that he could easily use that
arm as a guide while using his uninjured right arm to bear any necessary
weight, including during overhead lifting.
[13] Following Shoun’s presentation of evidence, BFP and Jane moved for
judgment on the evidence. The trial court denied the motion. After BFP and
Jane presented their evidence, they renewed their motion for judgment on the
evidence, and the motion was again denied. Before the jury received final
instructions, BFP and Jane objected to the trial court’s refusal to give to the jury
their tendered instructions regarding the law applicable to a claim for retaliatory
discharge. The court overruled the objection and instead read to the jury
alternative instructions regarding the law applicable to retaliatory discharge.
Thereafter, the jury was given separate verdict forms to fill out regarding each
of Shoun’s three claims.
[14] Following deliberations, the jury returned a verdict in favor of Shoun and
against BFP on Shoun’s retaliatory discharge claim, awarding him $337,680 in
compensatory damages for lost income and benefits. The jury also awarded
Shoun $50,000 in punitive damages on that claim. Regarding Shoun’s
defamation claim, the jury returned a verdict in favor of BFP and Jane. As for
the invasion of privacy by false light claim, the jury returned a verdict in favor
of Shoun and against BFP and Jane. On the verdict form, the jury left the line
designated for compensatory damages blank, but wrote “$25,000” on the line
designated for punitive damages. Appellants’ App. at 39. After the trial court
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read the verdicts in open court, the court asked the parties for any motions.
BFP and Jane requested a polling of the jury and the jurors indicated their
unanimous decision as to each verdict. The trial court entered judgment on the
jury verdicts on February 5, 2015.
[15] BFP and Jane subsequently filed a motion to correct error. The trial court
denied the motion following a hearing. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not err as a matter of law in
denying BFP’s motion for judgment on the evidence and
entering judgment on the jury’s verdict against BFP on
Shoun’s retaliatory discharge claim.
[16] BFP 1 asserts that the trial court erred as a matter of law in entering judgment on
the jury’s verdict in favor of Shoun on his retaliatory discharge claim.
Specifically, BFP claims that there was clear evidence that Shoun was – and for
the foreseeable future would continue to be – physically unable to perform the
functions of his pre-injury work, and therefore his retaliatory discharge claim is
barred as a matter of law. We disagree.
[17] Although not procedurally framed as such by BFP, BFP essentially claims that
it was entitled to judgment on the evidence and that the jury’s verdict on
Shoun’s retaliatory discharge claim is contrary to law. Our standard of review
1
In our discussion, we will refer to the appellants collectively as BFP.
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for a challenge to a trial court’s ruling on a motion for judgment on the
evidence is the same standard that governed the trial court in making its
decision. J.E. Stone Tree Serv., Inc. v. Bolger, 831 N.E.2d 220, 226-27 (Ind. Ct.
App. 2005). Judgment on the evidence is proper only where “all or some of the
issues…are not supported by sufficient evidence.” Ind. Trial Rule 50(A). This
Court looks only to the evidence and reasonable inferences drawn most
favorable to the nonmoving party, and the motion should be granted only
where “there is no substantial evidence supporting an essential issue in the
case.” Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003). “If there is evidence
that would allow reasonable people to differ as to the result, judgment on the
evidence is improper.” Id. Where the issue involves a conclusion of law based
upon undisputed facts, we determine the matter as a question of law in
conjunction with the motion for judgment on the evidence, and to this extent,
the standard of review is de novo. Cavens v. Zaverdac, 849 N.E.2d 526, 529 (Ind.
2006). In the end, we will not set aside a jury verdict unless the verdict is
wholly unwarranted under the law and the evidence. Bolger, 831 N.E.2d at 227.
[18] A review of Indiana law regarding retaliatory discharge claims is appropriate
here. “In general, an employment contract of indefinite duration is
presumptively terminable at the will of either party.” Stillson v. St. Joseph Cnty.
Health Dep’t, 22 N.E.3d 671, 679 (Ind. Ct. App. 2014) (citing Pepkowski v. Life of
Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind.1989)), trans denied (2015). However,
it is well settled in Indiana that an action for retaliatory discharge exists when
an employee is discharged for exercising a statutorily conferred right, such as
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filing a worker’s compensation claim. Purdy v. Wright Tree Serv., Inc., 835
N.E.2d 209, 212 (Ind. Ct. App. 2005), trans. denied (2006). In Frampton v.
Central Indiana Gas Co., 260 Ind. 249, 251-53, 297 N.E.2d 425, 427-28 (1973),
our supreme court held that an employee-at-will who was discharged for filing a
worker’s compensation claim could file an action for retaliatory discharge
against her employer because the Worker’s Compensation Act was designed for
the benefit of employees, and as such, its humane purpose would be
undermined if employees were subject to reprisal without remedy solely for
exercising that statutory right.
[19] This Court has outlined and consistently followed a three-step approach to a
retaliatory discharge Frampton claim under Indiana law. First, the employee
must prove, by a preponderance of the evidence, a prima facie case of
discrimination. Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1262 (Ind. Ct.
App. 2002). Specifically, the employee must present evidence that directly or
indirectly implies the necessary inference of causation between the filing of a
worker’s compensation claim and the termination. Id. Second, the burden
shifts to the employer to articulate a legitimate nondiscriminatory reason for the
discharge. Id. If the employer carries its burden, the employee then has the
opportunity to prove that the reason cited by the employer is a pretext. Id. He
may establish pretext by showing that the reasons are (1) factually baseless; (2)
not the actual motivation for his discharge; or (3) insufficient to motivate the
discharge. Id. The question of whether a retaliatory motive exists for
discharging an employee is a question for the trier of fact. Id. at 1261-62.
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[20] Despite our clear precedent on the shifting burdens of proof in a retaliatory
discharge claim, BFP cites to authority from other jurisdictions and urges us to
declare “as a matter of law” that Shoun’s retaliatory discharge claim is barred
(and should never have been submitted to the jury) because of what BFP claims
to be “uncontroverted evidence” that Shoun was – and for the foreseeable
future would continue to be – physically unable to perform the functions of his
pre-injury work. Appellants’ Br. at 22. 2 BFP’s arguments are misplaced and
appear to be based upon a misunderstanding of Indiana law.
[21] First, contrary to BFP’s assertions, the evidence regarding what Shoun’s pre-
injury work actually was, and whether he was able to perform the functions of
that work after his injury, was highly contested at trial. Moreover, pursuant to
Indiana law, a retaliatory discharge claim is not short-circuited merely because
the employer has articulated a nonretaliatory reason for discharge, such as the
employee’s physical inability to perform pre-injury work, as BFP asserted here.
Indeed, the employee still has the opportunity to prove by a preponderance of
the evidence that the reason cited by the employer is a pretext. Powdertech, 776
N.E.2d at 1262.
[22] We observe that undisputed evidence that an employee is physically unable to
perform the tasks required by his pre-injury work could, under very specific
circumstances, serve as a legitimate nonretaliatory basis for termination,
2
We decline to cite to the numerous foreign cases relied upon by BFP, as they are factually and procedurally
distinguishable, and the authority is neither binding nor persuasive under the circumstances presented.
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potentially rendering a retaliatory discharge claim unsuccessful. Compare Purdy,
835 N.E.2d at 212 (affirming summary judgment for employer and concluding
that employee failed to establish genuine issue of material fact that employer’s
stated reason for discharge, employee’s medical inability to return to work, was
a pretext), with Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 370 (Ind. Ct. App.
1999) (reversing summary judgment and concluding that evidence could
support inference that employer’s stated reason for discharge, employee’s
inability to fulfill job duties due to medical restrictions, was a pretext).
However, that is not to say that an employee should be summarily deprived of
his ability to present evidence of pretext or that his claim for retaliatory
discharge should be barred, as urged by BFP. This is certainly not, and never
has been, the law in Indiana. Additionally, we believe that it would be contrary
to the public policy underlying a Frampton claim to hold that an employer may
not fire an employee in retaliation for filing a worker’s compensation claim, but
that an employer may fire an employee for the inability to return to his job due
to the injuries that are the basis for the worker’s compensation claim. This is
especially the case where, as here, an employee is discharged well before the full
extent of permanent injury is known. 3 We decline BFP’s invitation to alter or
expand our well-settled law.
3
Shoun’s maximum medical improvement, or MMI, was not determined until December 28, 2012, more
than three months after his employment was terminated. Defendant’s Ex. EE.
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[23] BFP does not dispute, and therefore effectively concedes, that sufficient
evidence supports the jury’s determination, pursuant to Indiana law, that BFP
terminated Shoun’s employment solely in retaliation for filing a worker’s
compensation claim. 4 Accordingly, the trial court did not err in denying BFP’s
motion for judgment on the evidence and entering judgment on the jury’s
verdict in favor of Shoun on his retaliatory discharge claim.
[24] We reach the same conclusion regarding BFP’s related contention that the trial
court erred as a matter of law in entering judgment on the jury’s verdict
awarding Shoun damages for lost wages and benefits on his retaliatory
discharge claim. While we will discuss the amount of the damages award later,
BFP’s claim that Shoun is not entitled to such damages as a matter of law is
based upon the same inapplicable foreign authority as well as the alleged
“uncontroverted evidence” that Shoun was unable to perform his pre-injury
work. Again, contrary to BFP’s assertion, the evidence on this issue was
vigorously contested. We find no error.
Section 2 – The trial court did not abuse its discretion in
refusing BFP’s tendered jury instructions.
[25] BFP alternatively argues that the trial court erred as a matter of law in refusing
its tendered jury instructions regarding (1) Shoun’s inability to maintain a
4
Specifically, BFP states that “whether there was sufficient evidence for the jury to find that [BFP]
terminated Shoun’s employment solely in retaliation for filing a worker’s compensation claim is not relevant
to the issues raised in this appeal.” Reply Br. at 5.
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retaliatory discharge claim and (2) Shoun’s inability to recover damages for lost
wages on his retaliatory discharge claim. This Court has explained,
The decision to give or deny a tendered jury instruction is largely
left to the sound discretion of the trial court. We review the trial
court’s decision only for an abuse of that discretion. On review,
we will reverse the trial court’s refusal to give a tendered
instruction when the instruction is a correct statement of the law;
it is supported by the evidence; and it does not repeat material
already covered by other instructions.
Tucker v. Harrison, 973 N.E.2d 46, 56 (Ind. Ct. App. 2012) (citations omitted),
trans. denied (2013).
[26] We find it unnecessary to reproduce the proffered instructions here. For the
reasons discussed above, the instructions tendered by BFP and refused by the
trial court were neither supported by the evidence nor correct statements of
Indiana law. The trial court did not abuse its discretion in refusing to give the
instructions.
Section 3 – The jury’s compensatory damages award on
Shoun’s retaliatory discharge claim is not excessive.
[27] BFP challenges the jury’s $337,680 compensatory damages award on Shoun’s
retaliatory discharge claim as excessive. The retaliatory discharge of an at-will
employee constitutes an intentional wrongful act on the part of the employer for
which the employee is entitled to be fully compensated in damages. Haas
Carriage, Inc. v. Berna, 651 N.E.2d 284, 289 (Ind. Ct. App. 1995). Damages for
retaliatory discharge may include compensatory and punitive damages, and the
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compensatory damages may include both back pay and future pay. Remington
Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 942 (Ind. Ct. App. 1994). Damages
for lost income are assessed based upon a presumption of prospective
employment, and while the gauge of the employee’s losses “may not stretch on
ad infinitum,” the jury has the responsibility of determining what amount of
time is reasonable. Id. Moreover, the employee has a responsibility to mitigate
his damages, and if “the employee is able to find comparable employment,
damages may be recovered for the period in which he is unemployed.” Id. If,
however, the employee is unable to find comparable employment, the jury
should consider evidence on the difference between what the employee would
have earned had he not been discharged, and what he actually did earn
thereafter. Id.
[28] This Court applies a strict standard when reviewing a jury verdict containing a
damages award claimed to be excessive or inadequate. Dee v. Becker, 636
N.E.2d 176, 177 (Ind. Ct. App. 1994). Traditionally, juries are afforded a great
deal of discretion in assessing damage awards. Ritter v. Stanton, 745 N.E.2d
828, 843 (Ind. Ct. App. 2001), trans. denied (2002). On appeal, we consider only
the evidence that supports the award together with the reasonable inferences
therefrom. Id. If there is any evidence to support the amount of the award,
even if it is conflicting, we will not reverse. Id. The verdict will be upheld if the
award falls within the bounds of the evidence. Id. at 845.
[29] The jury’s award here was clearly within the bounds of the evidence.
Regarding past loss of income, evidence was presented that, as of the date of
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trial, twenty-eight and one-half months had elapsed since the termination of
Shoun’s employment on September 17, 2012. Shoun’s monthly income and
benefits at the time of his termination was $3398.91. Although Shoun testified
that he had been unable to find comparable employment during that time, he
stated that he was able to obtain seasonal work at an orchard. The parties agree
that, after subtracting unemployment and worker’s compensation benefits
received, as well as the wages he earned from the orchard, Shoun’s total past
loss of income was $71,809.36.
[30] BFP claims that the additional $265,870.64 in compensatory damages, which
should account for Shoun’s future loss of income and benefits, is excessive and
without evidentiary support. 5 We disagree. Shoun testified that, had he not
been terminated, he expected to work at BFP “at least” until age sixty-seven.
Tr. at 704. The jury reasonably could have interpreted this to mean until or
beyond age sixty-seven. Assuming monthly wages and benefits of $3398.91,
and employment until age sixty-seven or age sixty-eight, Shoun’s future loss of
income and benefits would range between $234,524.79 and $275,311.71. 6 The
jury’s award was clearly within the bounds of this evidence. Moreover, it was
5
Although the jury was instructed that it could also consider Shoun’s mental anguish, emotional distress,
and humiliation in its decision to award compensatory damages, the jury entered “$0” on the verdict form
regarding these damages. Appellants’ App. at 35.
6
BFP made no claim at trial, and similarly makes none here, that the presumption of Shoun’s prospective
employment up to age sixty-seven, or approximately sixty-nine months after termination, was an
unreasonable amount of time. Accordingly, we fail to see how the same presumption up to age sixty-eight,
or somewhere in between, would then be unreasonable. Also, it would have been the jury’s prerogative to
make its calculation assuming a reasonable increase in wages and/or benefits during that time period.
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squarely within the province of the jury to determine how much, if at all, to
credit BFP for subsequent income that Shoun may or may not earn from the
orchard. The law is well settled that, in a tort action, the verdict need not
reflect precise mathematical certainty. Larkey, 644 N.E.2d at 942. BFP
essentially asks that we reweigh the evidence and reach a different result than
the jury, which we may not do. We cannot say that the jury’s award was
outside the scope of the evidence or excessive under the circumstances.
Section 4 – BFP has waived our review of its assertion that the
trial court erred in entering judgment on the jury’s verdict
regarding damages on Shoun’s invasion of privacy claim.
[31] The jury returned a unanimous verdict against BFP on Shoun’s claim for
invasion of privacy by false light. However, on the verdict form, the jury left
blank the line designated for the entry of an award for compensatory damages
and entered “$25,000.00” on the line designated for the award of punitive
damages. Appellants’ App. at 39. BFP argues that the jury’s award of punitive
damages, but no compensatory damages, is contrary to Indiana law, and
therefore the trial court erred in entering judgment on this verdict.
[32] Indiana courts have long held that punitive damages are not freestanding and
that an award of actual damages is a prerequisite to an award of punitive
damages. Allstate Ins. Co. v. Axsom, 696 N.E.2d 482, 485 (Ind. Ct. App. 1998),
trans. denied. Indeed, punitive damages may not be awarded exclusively and
must be “in addition to” actual damages. Id. “Successful pursuit of a cause of
action for compensatory damages is a prerequisite to an award of punitive
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damages.” Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d 135, 137-38
(Ind. 2005). Our supreme court has explained that “punitive damages may be
awarded as part of the damages to which a plaintiff may be entitled if successful
under a recognized existing cause of action.” Yost v. Wabash College, 3 N.E.3d
509, 514 (Ind. 2014).
[33] Regarding damages generally, the jury was instructed in pertinent part that “If
you decide that the Plaintiff is entitled to recover, then in addition to
compensatory damages, you may also award punitive damages” and “If you
award punitive damages, you must state the amount of those damages on the
verdict form separately from the amount of compensatory damages.”
Appellants’ App. at 120-22. This language is susceptible to multiple reasonable
interpretations, including that punitive damages may be awarded merely upon
the decision that Shoun is “entitled to recover” on his invasion of privacy claim
against BFP. The instructions do not dictate that a compensatory damages
award is a prerequisite to a punitive damages award on each separate cause of
action, and the instructions imply that as long as the amount of punitive
damages awarded is stated separately on the verdict form, the award is proper.
See Hemings v. Redford Lounge, Inc., 485 N.E.2d 1378, 1385 (Ind. Ct. App. 1985)
(concluding that similar jury instruction was susceptible to reasonable
interpretation that punitive damages may be awarded upon finding of
entitlement to compensatory damages although no compensatory damages in
fact awarded; resulted in “confused and contradictory” verdict), trans. denied
(1986). The jury may have been confused and unaware of its responsibility to
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assess compensatory damages on the invasion of privacy by false light claim
before it could also assess punitive damages. In any event, an inconsistent
verdict regarding damages on this claim resulted.
[34] Despite the inconsistency, we conclude that BFP’s failure to object to the
verdict when it was returned has resulted in waiver of its challenge on appeal.
Young v. Ind. Dep’t of Natural Res., 789 N.E.2d 550, 554 (Ind. Ct. App. 2003),
trans. denied. The clear “purpose to objecting to the verdicts when they are read
is to allow the trial court an opportunity to ask the jury to continue
deliberations.” Id. at 556. Here, after the trial court read the jury’s verdicts, the
court asked the parties for “any motions?” Tr. at 1164. BFP made no objection
to the verdicts and requested only that the jury be polled. Id. Had BFP objected
to the jury’s verdict on the invasion of privacy claim as soon as it was returned,
the trial court could have informed the jury of the inconsistency regarding the
damages award and a proper verdict could have been reached. When the jury
was discharged, “the opportunity to avoid the expense of a new trial was lost.”
DDR Computer Serv. Bureau, Inc. v. Davis, 411 N.E.2d 722, 727 (Ind. Ct. App.
1980). BFP is not permitted to sit back and “simply ignore the irregularity and
hope for reversal on appeal.” Id.
[35] We note that counsel for both parties, as well as the trial court, could have done
more to better explain to the jury the legal principles involved in its award of
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damages and the proper way to fill out the verdict forms. 7 In short, this
inconsistent verdict could have been avoided. Nevertheless, BFP has waived
the issue. 8 The judgment of the trial court is affirmed in all respects.
[36] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
7
The record indicates that both parties agreed to the use of the specific verdict forms submitted to the jury.
Tr. at 1018.
8
We note that, even had we not found waiver, the most BFP could have hoped for would have been a new
trial on the limited issue of damages for invasion of privacy by false light. See Neher v. Hobbs, 760 N.E.2d 602,
608 (Ind. 2002) (new trial shall be limited only to those issues affected by error). Because the jury determined
that BFP caused Shoun harm for invasion of privacy by false light and also determined that BFP acted with
malice or, at the very least, gross negligence, it is likely that a new trial solely on damages would result in an
even less favorable outcome for BFP.
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