BILLY JOE STEWART and TAMMY BOWLING BADGETT V. ESTATE OF JAMES E . COOPER, BETTY COOPRER COOPER, EXECUTRIX, and WESTFIELD COMPANIES
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1999-SC-0963-DG
BILLY JOE STEWART and
TAMMY BOWLING BADGETT
V.
ON REVIEW FROM COURT OF APPEALS
97-CA-2908-MR
BOYD CIRCUIT COURT NO . 94-CI-00292
ESTATE OF JAMES E . COOPER,
BETTY COOPRER COOPER, EXECUTRIX,
and WESTFIELD COMPANIES
APPELLEES
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I . INTRODUCTION
This matter presents an issue of first impression . Appellants suffered injuries in
an automobile collision caused by a drunken driver, and later filed a lawsuit in which
they sought compensatory and punitive damages . The driver, however, died before
trial, and upon Appellants' motion, the trial court substituted the decedent driver's estate
as a party defendant. The trial court then granted the estate's motion to dismiss
Appellant's punitive damage claim and ruled that KRS 411 .184 does not authorize a
punitive damage award against a party - such as the decedent driver's estate - that did
not act toward Appellants with oppression, fraud, or malice . The Court of Appeals
affirmed, and we granted discretionary review to consider whether, under Kentucky law,
a plaintiff may recover punitive damages from a decedent tortfeasor's estate for the
decedent tortfeasor's oppressive, fraudulent, or malicious conduct. We conclude that
the answer to this question lies in the plain language of KRS 411 .184(2), which limits
punitive damages' availability to cases where the plaintiff proves "that the defendant
from whom such damages are sought acted toward the plaintiff with oppression, fraud
or malice ."' Accordingly, we affirm the decision of the Court of Appeals.
II. FACTUAL BACKGROUND
In October, 1992, James Cooper, while driving a vehicle under the influence of
alcohol, caused an accident in which Appellants were injured. Appellants filed a lawsuit
in Boyd Circuit Court in which they sought both compensatory and punitive damages
from James Cooper, but James Cooper died before the case came to trial . However, on
Appellants' motion, the trial court substituted the Estate of James Cooper ("the Estate"),
Betty Coomer Cooper, Executrix ,2 as a party defendant. The Estate stipulated to its
liability, but sought to limit both its compensatory damage exposure - by contesting the
nature and extent of Appellants' injuries and by seeking an apportionment of fault for
those injuries - and its punitive damage exposure - by arguing that Appellants could
not recover punitive damages from the Estate for the decedent's conduct. As to the
question of punitive damages, the trial court held that the Estate did not act with the
requisite oppression, fraud, or malice and granted the Estate's motion in limine asking it
to dismiss the Appellants' punitive damages claim:
' KRS 411 .184(2) .
2Although Appellants' original Notice of Appeal correctly identified Betty Coomer
Cooper's capacity as executrix of the Estate, Appellants' Motion for Discretionary
Review failed to identify Betty Coomer Cooper's capacity, and thus the style of the case
might appear misleading .
[W]hen you review the punitive damages statute itself, it
says that punitive damages are only to be recovered against
a party who has committed either malice or acts of
oppression . . . . [P]laintiffs are seeking to recover punitive
damages from the Estate of James Cooper, [and] there's no
evidence in the record that the Estate . . . did anything that
would amount to any kind of behavior that falls within the
purview of the punitive damages statute. . . . So . . . the
punitive damages claim . . . is not recoverable as an element
of damages .
Appellants' remaining damage claims were tried before a jury, and the trial court
entered judgment upon a jury's verdict that found Appellants entitled to compensation
for past medical expenses and past pain and suffering, but apportioned to Appellants
twenty percent (20%) of the responsibility for their injuries.
Appellants then appealed to the Court of Appeals, and argued that the trial court
erred by failing to permit the jury to consider the issue of punitive damages . A divided
panel of the Court of Appeals affirmed the trial court's ruling . We granted Appellants'
Motion for Discretionary Review.
III. ANALYSIS
In their brief to this Court, Appellants argue not only that the trial court and the.
Court of Appeals misinterpreted KRS 411 .184, but also argue in the alternative employing an argument with which this Court is familiar3 - that the lower courts'
construction of KRS 411 .184 violates the Kentucky Constitution's jural rights doctrine .
We comment upon this argument, and briefly address it, at the outset of our analysis
only to prevent Appellants' constitutional claim from detracting from our analysis of the
only real issue before the Court - a question of statutory interpretation. To the limited
3See Williams v. Wilson , Ky., 972 S.W.2d 260 (1998) (holding that KRS
411 .184(1)(c) is unconstitutional as a violation of jural rights to the extent that it
changes the common law standard for awarding punitive damages); Whitmer v. Jones,
Ky., 864 S .W.2d 885 (1993).
extent that Appellants even articulated this constitutional argument to the trial court, we
find that it has been procedurally defaulted by Appellants' failure to comply with KRS
418 .075(1)'s procedural mandate that the Attorney General be notified of a
.,,4 And,
constitutional challenge to the validity of a statute "before judgment is entered
in any event, we observe that at oral argument before this Court, Appellants' counsel
conceded that the jural rights doctrine was, in fact, inapplicable here because he could
not cite the Court to any precedent demonstrating that the common law prior to
Kentucky's current Constitution permitted recovery of punitive damages from a
decedent tortfeasor's estate . Accordingly, in our view, the only issue before the Court is
whether the trial court erred when it held that KRS 411 .184 would not permit a punitive
damages award against the Estate .
KRS 411 .184(2) provides : "A plaintiff shall recover punitive damages only upon
proving . . . that the defendant from whom such damages are sought acted toward the
plaintiff with oppression, fraud, or malice . ,5 KRS 411 .184(1) defines terms utilized in the
later subsection:
(d)
(e)
(f)
"Plaintiff" means any party claiming punitive
damages .
"Defendant" means any party against whom punitive
damages are sought.
"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 .6
418 .075(1). See Adventist Health Systems v. Trude, Ky., 880 S . W .2d 539,
542 (1994); Maney v. Mary Chiles Hospital , Ky., 785 S .W.2d 480, 482 (1990) ("It is our
view that KRS 418 .075 is mandatory and that strict enforcement of the statute will
eliminate the procedural uncertainty .").
4 KRS
'KRS 411 .184(2) (emphasis added) .
6
KRS 411 .184(1).
Appellants argue that the Court should hold that KRS 411 .184 permits recovery
against a deceased tortfeasor's estate under the circumstances in the case at bar.
Specifically, Appellants submit that, in interpreting KRS 411 .184, the Court should give
primacy to the public policies supporting punitive damage awards. And, Appellants
argue that KRS 411 .184(1)(f)'s "to discourage him and others from similar conduct in
the future" language reflects that the General Assembly has made a policy
determination that punitive damage awards deter similarly oppressive, fraudulent, or
malicious conduct in the future by individual defendants and society-at-large .
We, however, find KRS 411 .184(2) clear on its face and "[w]here there is no
ambiguity in a statute, there is no need to resort to the rules of statutory construction in
interpreting it. The words of the statute are simply accorded their commonly
understood meaning ."' KRS 411 .184(2), by its own terms, demonstrates that the
Kentucky General Assembly has reached the same policy determination reached by the
majority of jurisdictions that have considered this issue - a plaintiff may not recover
punitive damages from a decedent's estate for the decedent's oppressive, fraudulent,
or malicious conduct .$ Therefore, Appellants' argument that plaintiffs should be
permitted to recover punitive damages in cases like the one at bar is an argument of
policy that is better directed to the General Assembly. Although KRS 411 .184(1)(f)
evidences the General Assembly's intent that punitive damages will serve a policy of
general deterrence beyond the individual tortfeasors who are required to pay such
awards, the dissent's construction confuses the goals expressed in KRS 411 .184(1)(f)
7Regional Jail Authority v. Tackett , Ky., 770 S .W .2d 225, 229 (1989).
8 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 (2000) .
with the means outlined in KRS 411 .184(2). The dissent's suggestion that KRS
411 .184(1)(f) expresses a "clear public policy of deterring and punishing others," simply
misconstrues that provision, which does not communicate any intention that Kentucky's
courts should punish persons and entities indiscriminately regardless of whether they
have committed any wrong.
In order to recover punitive damages from the Estate, Appellants had to prove
that "the defendant from whom such damages are sought" - i .e., the Estate itself"acted toward the plaintiff with oppression, fraud or malice." And, in this case, it is
undisputed that Appellants could not produce any evidence that the Estate acted in
such a manner. In fact, when James Cooper elected to get behind the wheel of his
vehicle after having too much to drink - i .e., at the time of the conduct upon which
Appellants base their claim of punitive damages - the Estate did not even exist; it did
not come into being until James Cooper died - over four (4) years after the conduct for
which Appellants seek punitive damages . "Under that state of the facts, the trial judge
correctly declined to instruct the jury on punitive damages ."9
IV. CONCLUSION
For the above reasons, we affirm the decision of the Court of Appeals.
Lambert, C.J . ; Cooper, Graves and Johnstone, JJ ., concur. Wintersheimer, J .,
dissents by separate opinion in which Stumbo, J., joins .
9Berrier v. Bizer, Ky ., 57 S .W .3d 271, 284 (2001) .
-6-
COUNSEL FOR APPELLANTS :
Michael J . Curtis
1544 Winchester Avenue
PO Box 1455
Ashland, Kentucky 41105-1455
Robert F . Duncan
Jackson & Kelly
175 East Main Street
PO Box 2150
Lexington, Kentucky 40595-2150
James D. Keffer
PO Box 1455
Ashland, Kentucky 41105-1455
COUNSEL FOR APPELANTS, ESTATE OF JAMES E. COOPER and BETTY
COOMER COOPER :
William P. Emrick
McKenzie, Woolery, Emrick & Webb, PSC
1932 Carter Avenue
PO Box 1554
Ashland, Kentucky 41105-1554
COUNSEL FOR APPELLEE, WESTFIELD COMPANIES :
Mark Bramble
Kesner, Kesner & Bramble
PO Box 2587
Charleston, West Virginia 25329
RENDERED : APRIL 24, 2003
TO BE PUBLISHED
,9uyr=r (gaurf of ~wfurkg
1999-SC-0963-DG
BILLY JOE STEWART AND
TAMMY BOWLING BADGETT
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
97-CA-2908-MR
BOYD CIRCUIT COURT NO. 94-CI-00292
V.
ESTATE OF JAMES E. COOPER,
BETTY COOPRER COOPER,
EXECUTRIX, AND
WESTFIELD COMPANIES
APPELLEES
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
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 Tortfeaser or Person
Wronged, 30 ALR 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 , 666 N .E.2d
352 (III .App .Ct.1996) ; Tillett v. Lippert , 909 P.2d 1158 (Mont .1996) ; Perry v . Melton, 299
S .E .2d 8 (W .Va .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 .
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