Bradley v. Guess

Judge VAN CISE,

concurring in part and dissenting in part.

I

I concur with Part I of the majority opinion. The judgment in favor of plaintiff for both compensatory and punitive damages should be affirmed.

II

I disagree with the majority's ruling that prejudgment interest should have been added to the punitive damages awarded by the jury and, therefore, respectfully dissent from Part II. Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo.App.1986) (cert. denied June 8, 1987), and Coale v. Dow Chemical Co., 701 P.2d 885 (Colo.App.1985) (cert. denied September 23, 1985) are dispositive on this issue. As stated in Coale, “prejudgment interest cannot apply to punitive damages awards, and the trial court was correct in so ruling.”

This is the prevailing rule, not only in Colorado, but also nationwide. See In re IBP Confidential Documents Litigation, 755 F.2d 1300 (8th Cir.1985), cert. denied sub nom. Bagley v. IBP, Inc., 479 U.S. 1088, 107 S.Ct. 1293, 94 L.Ed.2d 150 (1987); Casto v. Arkansas-Louisiana Gas Co., 562 F.2d 622 (10th Cir.1977); Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734 (Fed.Cir.1984); Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed.Cir.1983); Matanuska Electric Ass’n v. Weissler, 723 P.2d 600 (Alaska 1986); Peterson v. First National Bank, 423 N.W.2d 889 (Iowa App.1988); Ramada Inns, Inc. v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985); Cappiello v. Ragan Precision Industries, Inc., 192 N.J.Super. 523, 471 A.2d 432 (1984); Vail v. Texas Farm Bureau Mutual Insurance Co., 754 S.W.2d 129 (Tex.1988); Blake v. Grant, 65 Wash.2d 410, 397 P.2d 843 (1964); Poling v. Wisconsin Physicians Service, 120 Wis.2d 603, 357 N.W.2d 293 (1984). Contra Greenfield v. Spectrum Investment Corp., 174 Cal.App.3d 111, 219 Cal.Rptr. 805 (Cal.App. 2 Dist.1985) (relied on by the majority here).

Section 13-21-101, C.R.S. (1987 Repl.Vol. 6A), in pertinent part, provides:

“In all actions brought to recover damages for personal injuries ... occasioned by the tort of any other person ... it is lawful for the plaintiff ... to claim interest on the damages claimed from the date the action accrued.” (emphasis supplied)

Section 13-21-102, C.R.S. (now in 1987 Repl.Vol. 6A), the exemplary damages statute, provides:

“In all civil actions in which damages are assessed by a jury for a wrong done to the person ... and the injury complained of is attended by ... a wanton and reckless disregard of the injured party’s rights and feelings, the jury ... may award him reasonable exemplary damages.”

As its rationale for refusing to follow Jacobs and Coale, supra, the majority asserts that “[a] claim for exemplary damages is inextricably tied to a plaintiff’s underlying claim for actual damages and, thus, comprises only one component of a single claim for relief....” I do not agree.

As stated by Judge Doyle in Casto v. Arkansas-Louisiana Gas Co., supra, construing together similar Oklahoma statutes:

“[T]he connection between the personal injury and the exemplary damages is not such as to render the exemplary damages the same as personal injury damages. The latter are, of course, compensatory and the interest is of the same character. Exemplary damages are not compensation for actual physical harm. Instead the exemplary damages are in the nature of punishment ... [Ajward of prejudgment interest on the exemplary damages was not justified.”

“Prejudgment interest is viewed as compensation for use by defendant of money to which plaintiff is entitled from the time the cause of action accrues until the time of judgment; it is not designed as a penalty.” Ramada Inns, Inc. v. Sharp, supra. As stated in Belinski v. Goodman, 139 N.J.Super. 351, 354 A.2d 92 (1976):

“Prejudgment interest is assessed on tort judgments because the defendant has had the use, and the plaintiff has not, of moneys which the judgment finds was the damage plaintiff suffered.... It is thus clearly implied that interest on the loss suffered by a plaintiff as a result of defendant’s tortious conduct is what was contemplated by the rule.

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“An award of punitive damages, by its own terms, is punitive in nature and purpose and the award of interest thereon no less so. Such damages do not compensate plaintiff for a loss sustained; their purpose is to punish a defendant for wrongful malicious conduct and as a deterrent to such conduct in the future.”

Otherwise stated, “Punitive damages are intended to punish the defendant and to set an example to others_ They are assessed over and above the amount of damages necessary to indemnify the plaintiff. The plaintiff can thus be made whole even if prejudgment interest is not awarded on punitive damages.” Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985).

Section 18-21-102 requires prejudgment interest on the compensatory damages for personal injuries. Punitive damages are not “damages for personal injuries.” Neither the language of § 13-21-101 nor the purpose of § 13-21-102 justifies awarding prejudgment interest on the award for punitive damages. The trial court’s ruling in this regard was correct and should be affirmed.