In the Matter of the Estate of Johnny VAJGRT, Deceased, Bill Ernst, Inc., Intervenor-Appellant

IN THE SUPREME COURT OF IOWA
No. 10–1088
Filed August 5, 2011
IN THE MATTER OF THE ESTATE
OF JOHNNY VAJGRT, Deceased,
BILL ERNST, INC.,
Intervenor-Appellant.
Appeal from the Iowa District Court for Marshall County,
Michael J. Moon, Judge.
Bill Ernst, Inc. appeals a district court ruling denying its claim for
punitive damages. AFFIRMED.
Theodore R. Hoglan of Condon & Hoglan Law Firm, Marshalltown,
for appellant.
Melissa A. Nine and Barry S. Kaplan of Kaplan, Frese & Nine, LLP,
Marshalltown, for appellee.
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MANSFIELD, Justice.
The sole question presented by this appeal is whether a right to
punitive damages survives the death of the wrongdoer. On several
previous occasions, we have held that punitive damages may not be
recovered from the estate of a deceased tortfeasor. See Rowen v. Le Mars
Mut. Ins. Co., 282 N.W.2d 639, 661 (Iowa 1979); Wolder v. Rahm, 249
N.W.2d 630, 632 (Iowa 1977); Stevenson v. Stoufer, 237 Iowa 513, 517,
21 N.W.2d 287, 288 (1946); Sheik v. Hobson, 64 Iowa 146, 147–48, 19
N.W. 875, 875–76 (1884). Upon our review, we are not persuaded that
we should reconsider these precedents. Therefore, we affirm the
judgment below.
I. Background Facts and Proceedings.
Bill Ernst, Inc. owns a thirty-three-acre tract of land north of
Marshalltown. The Ernst property is bordered by Highway 14 to the
west, property owned by Johnny Vajgrt to the north, city-owned property
to the east, and the Iowa River to the south. Burnett Creek meanders in
a generally southerly direction to the Iowa River, at times through the
eastern portion of the Ernst property and at times through the western
edge of the property owned by Marshalltown. The Ernst property is an
undeveloped, largely wooded area located in a floodplain that floods
annually. Ernst uses the land for recreational purposes.
Burnett Creek also flows southerly through Vajgrt’s property before
it reaches the Ernst property. In the fall of 2005, Vajgrt became
concerned that a fallen tree near the confluence of Burnett Creek and the
Iowa River would create a dam and cause water to back up onto his land.
Therefore, Vajgrt sought permission to enter onto Ernst’s land to remove
the tree. Bill Ernst initially refused Vajgrt’s request, but after the City of
Marshalltown agreed that Vajgrt could access its land to remove the tree,
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and Vajgrt explained to Ernst that it would be more convenient to go
through Ernst’s property, Ernst gave Vajgrt permission to come onto his
property to remove the fallen tree.
Ernst then left on a hunting trip to Colorado. During that time,
Vajgrt went onto Ernst’s property with another individual. Instead of
just removing the fallen tree, however, Vajgrt and the other person used
their equipment to tear out approximately forty live trees that were on
Ernst’s property along Burnett Creek.
When Ernst returned from his trip, he was angry to have found
that Vajgrt had uprooted numerous trees, instead of just removing the
single tree for which he had been given permission. Ernst did not
pursue a legal claim at that time, however.
Vajgrt passed away on November 4, 2008. On April 23, 2009,
Ernst filed a claim in probate seeking compensatory damages for the
diminution to the value of his property, the value of the trees, and the
expense of restoration, as well as punitive damages. 1
Following a contested hearing, the district court awarded Ernst
$57.50 per tree removed from Ernst’s property for a total of $2300, but
declined to award any punitive damages, stating, “[I]t is well-settled in
Iowa that while a tort action survives the death of the tortfeasor, punitive
damages cannot be awarded against the administrator of the tortfeasor’s
estate.” Ernst appeals, raising only the legal issue whether a claim for
punitive damages should abate upon the death of a tortfeasor.
1Ernst did not assert the statutory claim for treble damages that is available
when a person “willfully injur[es] any timber, tree, or shrub on the land of another.”
Iowa Code § 658.4 (2009); see also Johnson v. Tyler, 277 N.W.2d 617, 618–19 (Iowa
1979) (holding a plaintiff cannot recover both treble damages under section 658.4 and
punitive damages under the common law). We assume Ernst did not bring such a
claim because the statute of limitations for actions seeking a statutory penalty had
expired. See Iowa Code § 614.1(2) (two-year statute of limitations applies to actions “for
a statute penalty”).
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II. Standard of Review.
Whether a claim for punitive damages survives the death of a
tortfeasor and may be pursued against the tortfeasor’s estate is a legal
question. Therefore, our review is for the correction of errors at law.
Iowa R. App. P. 6.907; Bremer v. Wallace, 728 N.W.2d 803, 804 (Iowa
2007).
III. Analysis.
The long-standing rule in this state bars the recovery of punitive
damages when the tortfeasor dies before judgment. In Sheik, decided
when Iowa had been a state for less than forty years, we first announced
this rule. 64 Iowa at 147–48, 19 N.W. at 875–76. Sheik involved a suit
for slander. Allegedly, the defendant stated falsely in the presence of the
plaintiff’s husband that he had had sexual intercourse with the plaintiff.
Id. at 146, 19 N.W. at 875. The defendant died during the pendency of
the case, however, and the district court declined to instruct the jury on
punitive damages against his estate. Id. at 146–47, 19 N.W. at 875. The
plaintiff appealed, and we affirmed, explaining:
Such damages are awarded as a punishment of the man who
has wickedly or wantonly violated the rights of another,
rather than for the compensation of the one who suffers from
his wrongful act. It is true, they are awarded to the one who
has been made to suffer; but not as a matter of right. For,
while he is entitled under the law to such sum as will fully
compensate him for the injury sustained, the question
whether punitory damages shall be assessed, and the
amount of the assessment, is left to the discretion of the
jury.
Plaintiff had a right of action, on account of the
slanderous words spoken by [the defendant], for such sum
as would compensate her for the injury. This was her cause
of action, and this is what was preserved to her by the
statute at his death. But she had no personal interest in the
question of his punishment. So far as he was concerned, the
punitory power of the law ceased when he died. To allow
exemplary damages now would be to punish his legal and
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personal representatives for his wrongful act, but the civil
law never inflicts vicarious punishment.
Id. at 147–48, 19 N.W. at 875–76. In short, Sheik emphasized that,
because the role of punitive damages is punitive, rather than
compensatory, such damages should not be awarded when the person to
be punished has died.
This holding was subsequently reiterated in Stevenson, 237 Iowa at
517, 21 N.W.2d at 288 (“[T]he right to such damages did not survive the
death of the wrongdoer either at common law or under our survivorship
statute[.]”), Wolder, 249 N.W.2d at 632 (“[A] right to punitive damages
does not survive the wrongdoer’s death[.]”), and Rowen, 282 N.W.2d at
661 (“[S]uch an award is not made against one deceased[.]”).
Ernst argues that this line of authority is now obsolete and should
be overruled. Ernst relies on Iowa’s current survival statute as set forth
in Iowa Code section 611.20 (2009), Iowa’s punitive damages statute as
set forth in Iowa Code chapter 668A, and our own recognition in various
cases that punitive damages not only punish the tortfeasor, but also
deter others from like conduct. For the reasons stated herein, we find
none of these arguments persuasive.
A. Iowa Code Section 611.20. According to Iowa’s survival
statute, “[a]ll causes of action shall survive and may be brought
notwithstanding the death of the person entitled or liable to the same.”
Iowa Code § 611.20. Ernst argues that this provision “would logically
lean toward the allowance of [punitive] damages” even after the death of
the tortfeasor.
However, one potential problem with Ernst’s position is that
punitive damages do not constitute a distinct “cause of action.” Rather,
they are a form of relief incidental to the main cause of action. Sebastian
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v. Wood, 246 Iowa 94, 100, 66 N.W.2d 841, 844 (1954). Furthermore,
Iowa had a similar survival statute in effect in 1884 when Sheik was
decided. 64 Iowa at 147, 19 N.W. at 875 (citing Iowa Code section 2525
(1873), which provided that all causes of action “may be brought,
notwithstanding the death of the person entitled or liable to the same”).
We specifically rejected the same proposed construction of the survival
statute back then, id., and the legislature has reenacted the survival
statute in various forms without attempting to disturb our holding in
Sheik.
“The legislature is presumed to know the state of the law, including
case law, at the time it enacts a statute.” State v. Jones, 298 N.W.2d
296, 298 (Iowa 1980). “[W]e often infer legislative assent to our
precedents from prolonged legislative silence.” McElroy v. State, 703
N.W.2d 385, 395 (Iowa 2005). The rule of stare decisis
“is especially applicable where the construction placed on a
statute by previous decisions has been long acquiesced in by
the legislature, by its continued use or failure to change the
language of the statute so construed, the power to change
the law as interpreted being regarded, in such
circumstances, as one to be exercised solely by the
legislature.”
Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa 2002)
(quoting Cover v. Craemer, 258 Iowa 29, 34–35, 137 N.W.2d 595, 599
(1965)).
In short, reliance on the survival statute did not carry the day
when Sheik was decided. If anything, the argument has less force today,
given the legislature’s repeated reenactment of the survival statute
without attempting to disturb the holding in Sheik.
B. Iowa Code Chapter 668A. In 1986, the general assembly
enacted a law relating to punitive or exemplary damages. See 1986 Iowa
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Acts ch. 1211, § 42 (codified at Iowa Code ch. 668A (1987)). Under the
statute, as revised in 1987, see 1987 Iowa Acts ch. 157, § 10, a plaintiff
may recover punitive or exemplary damages if the plaintiff proves “by a
preponderance of clear, convincing, and satisfactory evidence, the
conduct of the defendant from which the claim arose constituted willful
and wanton disregard for the rights or safety of another.” Iowa Code
§ 668A.1(1)(a), (2) (2009). If the plaintiff also shows that the defendant’s
conduct was “directed specifically” at the plaintiff, then the plaintiff shall
be paid the full amount of the punitive or exemplary damages awarded.
Id. § 668A.1(1)(b), (2)(a). However, if the defendant’s conduct was not
directed specifically at the plaintiff, the plaintiff may only receive up to
twenty-five percent of the punitive or exemplary damages awarded, with
the remainder being paid into a civil reparations trust fund to help pay
for indigent civil litigation programs or insurance assistance programs.
Id. § 668A.1(1)(b), (2)(b).
But chapter 668A is silent on whether punitive damages survive a
tortfeasor’s death. Therefore, it is difficult to make the case that the
legislature intended to overturn the existing precedents in this area.
Jones, 298 N.W.2d at 298. Our court had just reiterated the rule that
punitive damages do not survive the tortfeasor’s death in 1977 and again
in 1979. It seems more plausible to conclude the legislature did not
intend to change this recent case law when it enacted wide-ranging
legislation on the subject of punitive damages in 1986 without
addressing the recoverability of punitive damages from estates. We are
not persuaded that the enactment of chapter 668A should lead us to
reconsider our long-standing precedents.
C. The Policies Behind Punitive Damages. We have said that
punitive or exemplary damages serve three purposes: (1) punishment,
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(2) specific deterrence, and (3) general deterrence. Sebastian, 246 Iowa
at 100, 66 N.W.2d at 844 (Punitive damages serve “as a punishment for
the particular party involved and as a warning and an example to him in
the future, and to all others who may offend in like manner. The award
of such damages constitutes an effective deterrent to such offenders, and
a salutary protection to society and the public in general.”); see also
McClure v. Walgreens Co., 613 N.W.2d 225, 230 (Iowa 2000) (“Punitive
damages serve ‘as a form of punishment and to deter others from
conduct which is sufficiently egregious to call for the remedy.’ ” (quoting
Coster v. Crookham, 468 N.W.2d 802, 810 (Iowa 1991))).
Citing this case law, Ernst argues that the general deterrence role
of punitive damages would be advanced by allowing recovery of such
damages from a tortfeasor’s estate. As Ernst puts it, “Sheik was decided
in a day when the only purpose of exemplary damages was that of
punishment. The additional purpose of exemplary damages presently is
to discourage/deter others from like conduct in the future.”
We agree with Ernst that Sheik did not address this potential goal
of punitive damages. It simply contrasted the compensatory function of
actual damages with the “punitory” function of punitive damages. Yet by
the time Rowen was decided in 1979, we were making it clear that
“punitive damages serve two main purposes[:] to punish and to deter.”
282 N.W.2d at 662; see also id. at 661 (“[T]hey are allowed as both a
punishment to the wrongdoer and a deterrent to others[.]”). Even so, in
Rowen, we again reiterated the Sheik holding that punitive damages
abate upon the death of the tortfeasor. Id. at 661. Thus, regardless of
any possible broadening of the potential goals served by punitive damage
awards, we have previously adhered to the rule that punitive damages
should not be awarded against the estate of a wrongdoer. We therefore
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do not believe that Ernst’s policy arguments warrant a reconsideration of
our precedents.
Notably, Iowa follows the same approach with respect to criminal
prosecutions. It has long been the law in this state that a criminal
prosecution abates upon the death of the defendant. See Maghee v.
State, 773 N.W.2d 228, 231 n.2 (Iowa 2009) (citing authorities). Even
though criminal fines may have a general deterrence effect on other
wrongdoers, the state may not continue a criminal proceeding after the
defendant dies to recover a fine from his or her estate. See State v.
Kriechbaum, 219 Iowa 457, 458–61, 258 N.W. 110, 110–12 (1934)
(holding that when a defendant dies while his conviction is on appeal, the
action abates in toto and ab initio, and the costs of prosecution cannot
be assessed against the defendant’s estate); Babbitt v. Corrigan, 157 Iowa
382, 383, 138 N.W. 466, 467 (1912) (stating that, in the criminal context,
“[p]unishment cannot be imposed upon a dead man, nor can penalties be
imposed as against his estate”); cf. Pac. Mut. Life Ins. Co. v. Haslip, 499
U.S. 1, 19, 111 S. Ct. 1032, 1044, 113 L. Ed. 2d 1, 20 (1991) (noting that
punitive damages have been described as quasi-criminal).
Also, Iowa’s rule in this area is not unique. Most other
jurisdictions disallow punitive damage recoveries after the wrongdoer has
died. 2 At present, approximately thirty-one jurisdictions in addition to
Iowa follow this approach. 3 Most of these jurisdictions (like Iowa) do so
2See Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Action as
Surviving Death of Tortfeasor or Person Wronged, 30 A.L.R. 4th 707, 712–13 (1984);
Timothy R. Robicheaux & Brian H. Bornstein, Punished, Dead or Alive: Empirical
Perspectives on Awarding Punitive Damages Against Deceased Defendants, 16 Psychol.
Pub. Pol’y & L. 393, 413 (2010) (“The majority of jurisdictions that have considered the
issues have barred punitive damages against deceased defendants, but courts usually
must interpret civil statutes that are silent on the issue.”).
3The following jurisdictions currently adhere to the majority approach: Idaho
Code Ann. § 5–327(1) (West, Westlaw through 2011 Chs. 1–335); Vt. Stat. Ann. tit. 14, §
10
because of appellate court rulings, rather than legislative enactments
expressly prohibiting punitive damage recoveries. 4 In fact, in a number
of jurisdictions that follow the majority rule, there are general survival
__________________________
1454 (West, Westlaw through 2011 Sess. No. 28); Fehrenbacher v. Quackenbush, 759 F.
Supp. 1516, 1521–22 (D. Kan. 1991) (applying Kansas law); Sanchez v. Marquez, 457 F.
Supp. 359, 364 (D. Colo. 1978) (applying Colorado law) (currently codified at Colo. Rev.
Stat. Ann. § 13–20–101(1) (West, Westlaw through July 1, 2011)); Doe v. Colligan, 753
P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 31 P.2d 389, 395 (Cal. 1934)
(subsequently codified at Cal. Civ. Proc. Code § 377.42 (1992)); Jonathan Woodner Co. v.
Breeden, 665 A.2d 929, 938–40 (D.C. 1995); Lohr v. Byrd, 522 So. 2d 845, 846–47 (Fla.
1988); Morris v. Duncan, 54 S.E. 1045, 1046–47 (Ga. 1906) (subsequently codified at
Ga. Code Ann. § 9–2–41 (West, Westlaw through 2011 Reg. Sess.)); Crabtree ex rel.
Kemp v. Estate of Crabtree, 837 N.E.2d 135, 138–40 (Ind. 2005); Stewart v. Estate of
Cooper, 102 S.W.3d 913, 915–16 (Ky. 2003); Edwards v. Ricks, 30 La. Ann. 926, 928
(1878); Prescott v. Knowles, 62 Me. 277, 279 (1874) (currently codified at Me. Rev. Stat.
Ann. tit. 18–A, § 3–818 (West, Westlaw through 2011 1st Reg. Sess.)); Wilkens v.
Wainwright, 53 N.E. 397, 397–98 (Mass. 1899) (currently codified at Mass. Gen. Laws
Ann. ch. 230, § 2 (West, Westlaw through 2011 1st Annual Sess. Ch. 67)); Thompson v.
Estate of Petroff, 319 N.W.2d 400, 408 (Minn. 1982); Hewellette v. George, 9 So. 885,
887 (Miss. 1891) (subsequently codified at Miss. Code Ann. § 91–7–235 (West, Westlaw
through 2011 legislative sessions), overruled on other grounds by Glaskow ex rel. Denton
v. Glaskow, 614 So. 2d 906, 907 (Miss. 1992); Tietjens v. Gen. Motors Corp., 418 S.W.2d
75, 88 (Mo. 1967); Allen v. Anderson, 562 P.2d 487, 489–90 (Nev. 1977) (subsequently
codified at Nev. Rev. Stat. Ann. § 41.100(2) (West, Westlaw through 2010 Special
Sess.)); Jaramillo v. Providence Wash. Ins. Co., 871 P.2d 1343, 1350–52 (N.M. 1994);
Gordon v. Nathan, 352 N.Y.S.2d 464, 465 (App. Div. 1974) (currently codified at N.Y.
Est. Powers & Trusts Law § 11–3.2(a)(1) (McKinney, Westlaw through 2011 Sess.));
Harrell v. Bowen, 635 S.E.2d 498, 500 (N.C. Ct. App. 2006); Mongold v. Estate of Gilbert,
758 N.E.2d 1245, 1247–49 (Ohio Ct. C.P. 2000); Morriss v. Barton, 190 P.2d 451, 459–
60 (Okla. 1947); Ashcraft v. Saunders, 444 P.2d 924, 926–27 (Or. 1968) (currently
codified at Or. Rev. Stat. Ann. § 30.080 (West, Westlaw through 2011 emergency
session)); Aldrich v. Howard, 8 R.I. 125, 127 (1864) (currently codified at R.I. Gen. Laws
Ann. § 9–1–8 (West, Westlaw through Jan. 2010 Sess. Ch. 321)); Olson-Roti v. Kilcoin,
653 N.W.2d 254, 260–62 (S.D. 2002); Hayes v. Gill, 390 S.W.2d 213, 217 (Tenn. 1965);
In re Estate of Garza, 725 P.2d 1328, 1330 (Utah 1986); Dalton v. Johnson, 129 S.E.2d
647, 650–51 (Va. 1963) (subsequently codified at Va. Code Ann. § 8.01–25 (West,
Westlaw through 2011 Reg. Sess.)); McWilliams v. Bragg, 3 Wis. 424, 431 (1854)
(currently codified at Wis. Stat. Ann. § 895.02 (West, Westlaw through 2011 Act 31));
Parker v. Artery, 889 P.2d 520, 524–25 (Wyo. 1995); see also Restatement (Second) of
Torts §§ 908 cmt. a, 926(b) (1979).
4Seventeen of the thirty-one jurisdictions referenced in the previous footnote
deny punitive damage awards against tortfeasor estates as a matter of judicial
precedent, despite the lack of any statute directly on point. Furthermore, in a number
of the remaining fourteen jurisdictions, the statutes in question were adopted after
appellate courts had already ruled that punitive damages were not recoverable after the
wrongdoer died.
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statutes similar to Iowa Code section 611.20. 5 Nevertheless, their courts
found that punitive damage recoveries did not survive the death of the
tortfeasor.
The minority view allows recovery of punitive damages even when
the wrongdoer has died. 6 But only about eleven jurisdictions have
adopted this position. And it would be difficult to argue there is a trend
toward it. For example, within the last decade, supreme courts in at
least three states have ruled for the first time that punitive damages are
not recoverable after the tortfeasor’s death. 7
Finally, our case presents another possible reason why it may be
appropriate for punitive damage claims to abate upon the death of the
tortfeasor. Here, the decedent Vajgrt entered upon Ernst’s property and
caused the trees to be removed in 2005, but Ernst did not seek judicial
redress until 2009, when he filed a claim in probate against Vajgrt’s
estate. While no one contests the timeliness of the claim, see Iowa Code
§ 614.1(4) (five-year statute of limitations for injuries to property), Vajgrt
5Alaska Stat. Ann. § 09.55.570 (West, Westlaw through 2010 2nd Reg. Sess.);
D.C. Code § 12–101 (West, Westlaw through May 10, 2011); Fla. Stat. Ann. § 46.021
(West, Westlaw through July 1, 2011); Ind. Code Ann. § 34–9–3–1 (West, Westlaw
through 2011); Minn. Stat. Ann. § 573.01 (West, Westlaw through 2011 Reg. Sess. Ch.
19).
6The following jurisdictions currently follow this rationale: Ellis v. Zuck, 546 F.2d
643, 644–45 (5th Cir. 1977) (applying Alabama law); In re Thomas, 254 B.R. 879, 887
(D. S.C. 1999) (applying South Carolina law); Haralson v. Fisher Surveying, Inc., 31 P.3d
114, 115 (Ariz. 2001); Estate of Farrell ex rel. Bennett v. Gordon, 770 A.2d 517, 521–22
(Del. 2001); Kaopuiki v. Kealoha, 87 P.3d 910, 924–28 (Haw. Ct. App. 2003); Penberthy
v. Price, 666 N.E.2d 352, 354–57 (Ill. App. Ct. 1996); Tillett v. Lippert, 909 P.2d 1158,
1161–62 (Mont. 1996); G.J.D. v. Johnson, 713 A.2d 1127, 1129–31 (Pa. 1998); Hofer v.
Lavender, 679 S.W.2d 470, 474–75 (Tex. 1984); Perry v. Melton, 299 S.E.2d 8, 11–13
(W. Va. 1982); see also Munson v. Raudonis, 387 A.2d 1174, 1177–78 (N.H. 1978)
(stating that although New Hampshire law does not allow for punitive damages,
compensatory damages survive the death of the tortfeasor and the “compensatory
damages awarded may reflect the aggravating circumstances” when wanton, malicious,
or oppressive conduct is involved).
7See Crabtree, 837 N.E.2d at 139; Stewart, 102 S.W.3d at 916; Olson-Roti, 653
N.W.2d at 260–62.
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is no longer available to defend himself and testify why he did not act
with “willful and wanton disregard for the rights or safety of another.” Id.
§ 668A.1(1)(a). In a circumstance in which the actor’s state of mind is
important, direct evidence of that state of mind is no longer available.
This argument can be pressed too far. Under the rule in Sheik,
punitive damages may not be recovered if the tortfeasor dies before
judgment, even if the tortfeasor had the opportunity to testify on his or
her own behalf.
At the same time, we believe this is an area in which all the policy
arguments can be pressed too far. For example, we doubt that the
typical tortfeasor makes a calculation about the possibility of a punitive
damage award against his or her estate, should he or she die before
judgment. Thus, the marginal deterrence gain from a rule allowing
punitive damages to be awarded against decedent’s estate seems to us
relatively small. All the more reason, therefore, to defer to our
established precedents and the legislature’s prior decisions not to disturb
them.
IV. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court, including its refusal to award punitive damages against Vajgrt’s
estate.
AFFIRMED.
All justices concur except Wiggins and Appel, JJ., who concur
specially, and Hecht, J., who dissents.
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#10–1088, In re Estate of Vajgrt
WIGGINS, Justice (concurring specially).
I write to concur specially. I agree with the well-reasoned dissent.
If we were to develop the common law further in this area, I might
overrule our prior precedents for the reasons stated in the dissent and
allow the court to award punitive damages awarded against the estate of
a deceased tortfeasor. However, when the legislature jumped into the
arena of punitive damages in 1986, it left most of our common law rules
regarding punitive damages intact. In this instance, the legislature’s
inaction as to these common law rules tips the scales not to overturn a
precedent in existence when the legislature passed Iowa Code chapter
668A (2009). Accordingly, I am unable to join the dissent.
Appel, J., joins this special concurrence.
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#10–1088, In re Estate of Vajgrt
HECHT, Justice (dissenting).
The majority opinion follows the rule adopted by this court in Sheik
v. Hobson. In that case, decided in 1884, we summarily concluded “the
punitory powers of the law ceased when [the tortfeasor] died,” and we
expressed a disinclination to punish the wrongdoer’s heirs for their
benefactor’s malicious conduct. Sheik v. Hobson, 64 Iowa 146, 148, 19
N.W. 875, 875–76 (1884). Although this court has continued to follow
the holding announced in Sheik since it was decided, I believe the
rationale supporting the rule is gravely flawed, and I therefore would
reverse and remand.
While acknowledging the importance of the doctrine of stare decisis
to the rule of law, this court has not hesitated to renounce flawed
common law rules. Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117,
121 (Iowa 1973). Our willingness to revisit such rules finds its source in
the sensible notion that fealty to stability in the law “should not be
invoked to maintain a clearly erroneous result simply because that’s the
way it has been in the past.” Id. This principle recognizes the reality
that courts sometimes make mistakes and concedes “we should be as
willing to correct our own mistakes as we are those of others.” Id. In my
view, this is one of those times.
In rejecting the idea that punitive damages should not be
recoverable against a tortfeasor’s estate, the Arizona Supreme Court has
noted:
There is no logical reason why courts should allow a
punitive award against a defendant who survives a
judgment, but deny it where death occurs earlier. Suppose,
for example, two individuals commit equally culpable and
outrageous acts. One is comatose and, for all practical
purposes, has no reasonable chance of recovery. The other
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is dead. Is there a way to explain why the unconscious
tortfeasor would have his assets exposed to punitive liability,
while the deceased’s estate would be immunized from it?
Haralson v. Fisher Surveying, Inc., 31 P.3d 114, 118 (Ariz. 2001).
Although courts following the majority rule have offered explanations for
the rule immunizing tortfeasors’ estates from punitive damage
judgments, I find none of them persuasive.
Perhaps the most common explanation—one conclusorily noted by
this court shortly after the Civil War—suggests the purpose of
punishment cannot be achieved against a deceased tortfeasor. Sheik, 64
Iowa at 147–48, 19 N.W. at 875–76. While this proposition has some
logical appeal, I believe the law should, for purposes of punishment, view
punitive damages as an appropriate means to accomplish a form of
retribution against the departed. A tortfeasor’s testamentary or intestate
transfer of assets can have an impact on the lives of survivors long after
the tortfeasor’s death. Just as his predeath misconduct can have
injurious consequences long after his death, a tortfeasor reaches beyond
the grave to effectuate property transfers through his estate. Although
the deceased tortfeasor is not physically present to personally experience
the retributive effects of any punitive damage judgment against his
estate, I believe it is reasonable to view the disruption of his preferred
plan of postdeath asset distribution as a form of punishment of the
deceased tortfeasor. Accordingly, I believe we were simply wrong when
we concluded in Sheik that the power of the law to punish a deceased
tortfeasor expires with his death.
A second explanation offered by courts following the majority rule
posits that innocent beneficiaries should not suffer consequences for the
willful and wanton misconduct of benefactor–tortfeasors. In my view,
this notion misses the mark. A punitive damage award against the
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tortfeasor’s estate effects no punishment on the beneficiaries. The
beneficiaries of the tortfeasor’s estate are affected by all manner of their
benefactor’s predeath choices and conduct. In some instances a
benefactor’s predeath choices and conduct enhance, and in other
instances diminish, the economic outcomes for his beneficiaries. For
better or worse, estate beneficiaries experience the consequences of their
benefactor’s predeath decisions and conduct for which they are not
legally or morally responsible. When a benefactor’s predeath choices or
conduct consistent with the law adversely affect the amount of assets
available for distribution from his estate, beneficiaries are not generally
shielded or held harmless. They take whatever assets are available to
them from the estate consistent with the prevailing law. As the
Intermediate Court of Appeals of Hawaii has observed:
The fact that the size of the tortfeasor’s estate would be
reduced is not a valid reason for not entering the judgment
for punitive damages against the tortfeasor’s estate. The
beneficiaries of the estate of the tortfeasor have no right or
entitlement to more than the tortfeasor would have had if he
or she had lived, or to more than the net of the tortfeasor’s
estate after payment of all legal obligations, including
judgments against the estate for punitive damages.
Kaopuiki v. Kealoha, 87 P.3d 910, 928 (Haw. Ct. App. 2003).
Where the legislature has not directed otherwise, the common law
of Iowa should allow punitive damage judgments against estates. The
contrary rule announced in Sheik comes at far too great a cost to the
legitimate purpose of punishment served by punitive damage judgments.
But aside from the question of whether the purpose of punishment
can, and as I believe, it should, be achieved through a punitive damage
remedy against the estate of a tortfeasor who willfully and wantonly
injures another, I would overrule Sheik in furtherance of the purpose of
deterrence alone. See Penberthy v. Price, 666 N.E.2d 352, 356–57 (Ill.
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App. Ct. 1996) (finding a sufficient deterrent purpose for punitive
damages against a tortfeasor’s estate even if the purpose of tortfeasor
punishment is not achieved). As the majority opinion correctly notes, the
goal of deterrence may be viewed specifically and generally. In the
context of specific deterrence, the inquiry is whether a specific tortfeasor
would be motivated by the prospect of his liability for punitive damages
to refrain from willful and wanton misconduct. In the context of general
deterrence, the question is whether other potential actors will tend to
avoid willful and wanton misconduct as a consequence of a punitive
damage judgment against the specific tortfeasor’s estate. I believe a
common law rule authorizing a judgment for punitive damages against
the estate of a tortfeasor who willfully or wantonly injured another
powerfully serves as a deterrent in both contexts.
The tortfeasor who understands the distribution of the assets in
his estate could be disrupted by a judgment for punitive damages—
should he die as a consequence of his willful or wanton misconduct
against another or from other causes prior to the entry of a civil
judgment—will likely be deterred by the prospect. The purpose of
deterrence is clearly advanced when a living, potential tortfeasor knows
his estate plan, usually benefitting a spouse, children, family, or friends,
will be disrupted by a punitive damage judgment if he engages in willful
and wanton tortious conduct, whether he survives the imposition of
judgment or not. The rule announced in Sheik and reaffirmed in this
case by the majority militates against the purpose of specific deterrence
for certain tortfeasors, such as one who is terminally ill or elderly or one
who is contemplating a willful or wanton act calculated to cause his own
death and harm another, by assuring them a crude advantage over the
tortfeasor who survives his willful and wanton tort and civil judgment.
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Deterrence in the general sense would also be maximized by a rule
allowing judgments for punitive damages against tortfeasors’ estates.
Others perceiving judgments for punitive damages against tortfeasors’
estates will be deterred from willful or wanton misconduct, knowing that
their estate plans and loved ones will be similarly affected by their willful
and wanton misconduct. The extraordinary importance of general
deterrence alone justifies, in my view, the reversal of Sheik and the
adoption of a new rule. Accordingly, I respectfully dissent.