Stewart v. Estate of Cooper

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because a proper interpretation of KRS 411.184 does not prohibit the award of punitive damages against “others” such as the decedent driver’s estate.

Billy Joe Stewart and Tammy Bowling Badgett were injured in an automobile accident on October 16,1992 involving James E. Cooper. Stewart was driving on Winchester Avenue in Ashland, Kentucky when Cooper failed to yield the right of way and pulled in front of him resulting in a collision of the two vehicles. Badgett was a passenger in the automobile driven by Stewart. Cooper was arrested at the scene and charged with driving under the influence, first offense. Ultimately, he pleaded guilty to the offense.

In 1994, Stewart and Badgett filed a civil suit against Cooper to recover both compensatory and punitive damages for the injuries they received in the collision. Cooper died prior to trial and his estate was substituted as a defendant in 1997. A trial date was set for October 6, 1997, but the estate filed a motion on October 3, 1997, claiming that the plaintiffs could not recover punitive damages because Cooper was deceased. The trial judge agreed and held that the plaintiffs could not recover punitive damages from the estate based on Cooper’s alleged negligence. The trial jury gave a verdict of $27,885.75 to Stewart and $15,337.58 to Badgett by way of compensatory damages. The jury apportioned liability 80 percent to Cooper and 20 percent to the plaintiffs. The Court of Appeals affirmed and this Court accepted discretionary review.

As the majority opinion correctly notes, this is a case that involves statutory interpretation. The sections of the statute in question must be read together. KRS 411.184(2) states that:

A plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence, that the defendant from whom such damages are sought acted toward the plaintiff with oppression, fraud or malice.

Subsection (2) directly follows KRS 411.184(1)(f), which provides that:

“Punitive damages” includes exemplary damages and means damages, other than compensatory and nominal damages, awarded against a person to punish and to discourage him and others from similar conduct in the future, (emphasis added)

It is beyond question that the General Assembly determined that the reason for awarding any punitive damages is to punish and deter the wrongdoer and others from similar conduct in the future. It is the responsibility of this Court to harmonize the language of the legislature so as to produce a result that is not absurd. KRS 411.184(1)(f) specifically used the statutory language to punish and discourage “him and others.” The interpretation placed upon this language by the majority cannot be reconciled with the clear public policy of deterring and punishing others.

When read as a whole, the statute is ambiguous to the degree that the words “from whom such damages are sought” could preclude recovery from the estate of a wrongdoer, but then we are left with the words of the previous section about punishing and discouraging others. The words “from whom such damages are sought” in the statute simply means that a plaintiff is entitled to recover punitive damages from one defendant but cannot recover from a codefendant in the absence of egregious conduct.

To highlight the ambiguity and difference of opinion on this question, we need only refer to the writers of legal encyclopedias, particularly, Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Actions as Surviving Death of a Tortfeasor or Person Wronged, 30 A.L.R.4th 707 (1984). As noted by the Court of Appeals, approximately 33 other states have addressed the issue and the majority have determined that punitive damages may not be recovered from an estate. On the other hand, a clear minority of approximately four states do allow punitive damages against the estate. See Hofer v. Lavender, 679 S.W.2d 470 (Tex.1984), recognizing other Texas cases which hold that punitive damages not only punish and deter wrongdoers, but they also provide a vehicle for victims to recover reimbursement for inconvenience, attorneys fees and losses too remote to be considered as compensatory. See also Penberthy v. Price, 281 Ill.App.3d 16, 216 Ill.Dec. 902, 666 N.E.2d 352 (1996); Tillett v. Lippert, 275 Mont. 1, 909 P.2d 1158 (1996); Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8 (1982).

In Kentucky, the concept of permitting punitive damages in addition to compensatory damages is one of long standing. Horton v. The Union Light, Heat & Power Co., Ky., 690 S.W.2d 382 (1985). Punitive damages are intended to be a penalty for the violation of the rights of another. Bisset v. Goss, Ky., 481 S.W.2d 71 (1972). The focus is more on the egregious nature of the offense in societal terms rather than the impact on the individual plaintiff suffering the injury. See 25 C.J.S. Damages § 117(1) (1989).

The doctrine of punitive damages serves the useful purpose of expressing society’s disapproval of intolerable conduct and deterring such conduct where no other remedy would suffice. See Horton, supra at 390, quoting Mallor and Roberts, Punitive Damages Toward a Principled Approach, 31 Hastings L.J. 639 (1980). Punitive damages are awarded in addition to compensatory damage to punish a defendant for his reckless indifference to the rights of others. Cf. The Restatement (Second) of Torts § 908(2) (1979).

As observed by Judge Dyche in his dissenting opinion in the Court of Appeals, an injured person can never be made totally whole because attorney fees are not a recoverable cost. The allowance of punitive damages in a proper and legitimate case could be a step toward producing a remedy for that problem.

Caution should always be exercised in regard to the award of punitive damages because a blatantly excessive award can be counterproductive and embarrass the entire judicial and legal system.

The circuit court was in error in refusing to instruct the jury on the issue of punitive damages and to allow the jury to reach a verdict that would fully compensate the plaintiffs for their losses.

STUMBO, J., joins this dissenting opinion.