Lead Opinion
The opinion of the court was delivered by
Kody Bicknell seeks our review of a Court of Appeals decision permitting Tammy Adamson to pursue punitive damages in her lawsuit against him after Bicknell rear-ended Adamson’s vehicle at a train crossing. The punitive damages claim was based, in part, on BicknelTs positive screening in a postcollision test for marijuana and cocaine, on his admission that he was smoking marijuana approximately 4 hours before the collision, and on a significant quantity of marijuana discovered in BicknelTs vehicle. He later acknowledged his drug consumption contributed to the collision. Bicknell also appeals from the panel’s decision permitting Adamson to submit medical bill write-offs to the jury.
A majority of this court agrees with the panel’s decision that the district court set a higher burden of proof for the punitive damages claim than statutorily necessary by requiring that Adamson provide what would amount to scientific evidence of BicknelTs impairment resulting from his admitted consumption of drugs. But the majority also holds that tire panel erred in deciding that the district court should have permitted Adamson to amend for punitive damages based on tire evidence as the panel perceived it. Such a holding evokes a fact-finding function on tire part of tire panel. See Sall v. T's, Inc.,
In July 2003, Bicknell rear-ended Adamson’s car as she waited in traffic at a railroad crossing. Just before impact, Adamson saw Bicknell’s truck quickly approaching from behind. She unsuccessfully attempted to move her vehicle to avoid the collision. Adam-son’s car was struck and in a chain reaction collided into another vehicle stopped in front of her. Adamson checked herself into a hospital that evening complaining of a stiff neck, shoulder, and back. Adamson eventually underwent several surgeries and physical therapy.
The Kansas Highway Patrol trooper investigating the accident testified in a discovery deposition that he smelled alcohol and both burned and raw marijuana coming from Bicknell’s vehicle. A marijuana pipe, 19 bags of marijuana, empty cans of alcoholic beverages, prescription bottles under Bicknell’s name, and a digital scale with residue were found inside Bicknell’s truck. Bicknell told the trooper the accident was his fault. The trooper later testified that he believed the collision occurred because Bicknell “fail[ed] to give full time and attention to the roadway.” The trooper also said he believed drug use may have contributed to the accident by causing Bicknell to have a diminished ability to perform tasks and a hampered and divided attention level.
Bicknell was taken to a hospital for urine and blood testing in accordance with protocol for a crash of such severity and because drugs were found in his vehicle. He tested negative for alcohol, but positive for both marijuana and cocaine. Bicknell was subsequently charged with multiple drug offenses. He ultimately entered a 12-month diversion agreement for driving under the influence, in which he stipulated that on the day of the crash, he operated his vehicle while under the influence of alcohol or drugs and tested positive for marijuana and cocaine.
District Court Proceedings: Punitive Damages
Adamson sued Bicknell for her personal injuries caused by his negligence in operating his motor vehicle by failing to keep a proper lookout; driving too fast for the existing road conditions; following too closely to other vehicles; failing to stop, sweive, or
Adamson supported the punitive damages motion with the following: (1) Bicknell’s deposition testimony in which he said he had not been paying attention to traffic and that his attention was diverted from the roadway as he approached the train stop; (2) Bick-nell’s admission he smoked marijuana earlier that same day; (3) his response when asked whether the marijuana impaired him, in which he replied, “At the time I definitely would have said no, that it did not impair me. But now looking back at it, and not doing that stuff for a long time, I’m sure it did have some affect with why I got in the wreck”; (4) the collision’s occurrence on a clear afternoon with no obstructions interfering with Bicknell’s view; (5) the discovery in Bicknell’s vehicle of several baggies of marijuana, a marijuana pipe, a digital scale, and empty alcoholic beverage containers; (6) testimony from Bicknell’s passenger that the drugs in the vehicle belonged to Bicknell; (7) the passenger’s testimony that he did not smell marijuana when he entered Bicknell’s vehicle earlier that day; (8) the trooper’s testimony about smelling burnt and raw marijuana after the collision; and (9) the force and circumstances of the collision.
Adamson argued Bicknell’s marijuana use that day impaired his ability to focus and pay attention to the roadway and that at the time of the accident Bicknell was driving in an impaired state from alcohol and marijuana. Adamson further argued it was reasonable to assume Bicknell was “deeply” involved in marijuana based on the amount of it located in his vehicle and that he knew the effects and chose to drive in an impaired state in a “callous disregard for the consequences.”
In Bicknell’s response, he claimed the trooper’s accident report never mentioned Bicknell was impaired or intoxicated, although a review of the report shows it indicated illegal drugs were present
Bicknell argued that Adamson failed to demonstrate that drug impairment was the proximate cause of the crash because there was no evidence quantifying the amount of marijuana or cocaine in BicknelTs system, how long either drug had been in his system, or that a positive drug screen resulted in an impaired driver. The KBI lab toxicology report noted a positive screening for marijuana and cocaine, but not the amount or level of drugs detected.
The district court denied Adamson’s motion to add a punitive damages claim. It acknowledged there was evidence of drugs but found that evidence did not conclusively show Bicknell was under the influence or, if he was, the extent that it would have contributed to the crash. The district court noted the trooper testified only that he smelled “burnt” marijuana, not “burning” marijuana, and did not check to see if the marijuana pipe found in BicknelTs vehicle was warm, which might indicate recent use. The court also noted the trooper said Bicknell appeared alert and oriented at the scene. The court also found that while the trooper showed marijuana was in the vehicle, there was no evidence that Bicknell was under the influence of it.
The district court further found that a rational fact-finder would consider BicknelTs admission in his diversion agreement with a “jaundiced eye” because he might have entered the agreement simply to avoid prosecution on other charges. In addition, the court said BicknelTs “admission” that smoking marijuana played a role in the accident came after Bicknell attended counseling, was drug-free, and understood the impairing effects of drugs. To the district court, BicknelTs admissions fell short of the quality necessary to constitute clear and convincing evidence. The district court then stated:
“[T]he court concludes that plaintiff can establish that defendant smoked marijuana approximately four hours before the accident and that defendant’s urine tested positive for marijuana and cocaine. Plaintiff has presented nothing ofevi-*884 dentiary value to quantify the amount of marijuana or cocaine in defendant’s system at the time of the accident, nor anything of evidentiary value to demonstrate that the quantity of drugs in defendant’s system was sufficient to affect defendant’s ability to operate a motor vehicle.” (Emphasis added.)
Based on these perceived gaps in the evidence, tire district court held it unlikely that Adamson could prove by clear and convincing evidence that Bicknell was under the influence of drugs to such a degree that operating a vehicle constituted willful or wanton conduct and, accordingly, denied her motion.
In response to the ruling, Adamson filed a motion for reconsideration, attaching an affidavit from a witness who claimed to have seen Bicknell driving at a high rate of speed in an “erratic” manner just before the collision. But the district court again denied Ad-amson’s motion, holding that while such erratic driving is consistent with a DUI, it is also consistent with simple negligence. The court also discounted a new report written by a KBI toxicologist, stating that the effects of cocaine can last from minutes to hours while the effects of marijuana can last from 2-24 hours. The court said this information only confirmed its previous decision and again held there was insufficient evidence to afford a trier of fact clear and convincing evidence the accident was caused because Bicknell was under the influence.
District Couri Proceedings: Medical Bill Write-offs
Bicknell filed a pretrial motion in limine seeking to restrict Ad-amson’s medical bills evidence to only the amount paid by Medicaid and to exclude any portion billed that was eventually written-off by the hospital or not submitted by health care providers. Adamson argued she should be permitted to submit all outstanding or written-off medical bills, which totaled $42,579.34. Adamson claimed those write-offs were not subject to analysis under Bates v. Hogg,
In ruling on the motion, the district court allowed Adamson to present “sanitized” versions of what Medicaid paid in the amount of $23,016.13. The district court also said it would allow Adamson to put into evidence $4,781 paid by personal injury protection insurance (PIP), and $187.09 in out-of-pocket expenses, for a total of $27,984.23. The court said it would not allow any hospital or insurance write-offs because Adamson had Medicaid available to her.
To comply with the order, the parties stipulated to an exhibit in which they agreed that the reasonable amount of medical expenses totaled $26,346.21. The jury awarded Adamson $23,600, including $11,100 for medical expenses to date; $7,500 for economic loss to date; and $5,500 for noneconomic loss to date. There was no award for future noneconomic loss.
In a posttrial hearing on her motion for new trial, Adamson for the first time asked the district court to overturn Bates. In doing so, Adamson argued it was “baloney” to prohibit her from submitting anything more than just a fraction of total medical cost. She contended the better method would have been for the court to allow her to submit the entire bill and let the court cut out certain write-offs and reduce the total afterwards. This method, Adamson claimed, would have helped prevent juiy confusion about why the stipulated amount of $26,346.21 was so low in comparison with the testimony reflecting much more extensive medical treatment. The district court denied Adamson’s motion, saying it was bound by Bates.
Court of Appeals Decision
On appeal, the Court of Appeals reversed the trial court’s denial of Adamson’s motion seeking punitive damages. Adamson v. Bicknell,
*886 “[T]he district court determined that Adamson failed to establish tire precise amount of marijuana and cocaine in Bicknell’s system at the time of the accident and that, without evidence to quantify the presence of drugs, it was unlikely Ad-amson would be able to prove by clear and convincing evidence at trial that Bicknell acted wantonly. [Citations omitted.]”41 Kan. App. 2d at 966 .
The panel held that the district court abused its discretion because a reasonable factfinder could determine by clear and convincing evidence that Bicknell’s conduct was wanton. The court said there was “simply no dispute” that Bicknell was under the influence, regardless of the extent of that impairment. The court held that whether wanton conduct existed was not premised on the amount of drugs in Bicknell’s system, but on Bicknell’s choice to drive under circumstances that would likely cause a collision. The panel relied on Reeves v. Carlson,
“[W]e do not believe that a lack of evidence regarding intoxication beyond the legal limit and/or the precise quantity of marijuana and cocaine in Bicknell’s system at the time of the accident is fatal to Adamson’s claim that Bicknell was completely indifferent to the probable consequences of his actions. Wanton conduct is not premised on the existence of a minimum level of intoxication or quantity of drugs in the system. In fact, finding that the drugs ingested by Bicknell did or did not cause Bicknell to crash into Adamson’s vehicle is immaterial to our analysis of whedier Bicknell engaged in wanton behavior. The ‘wanton conduct’ giving rise to die claim for punitive damages ‘was not the collision, but [Bicknell’s] choice to drive under die circumstances that would likely or probably result in a collision.’ ” Adamson,41 Kan. App. 2d at 966 (citing Reeves,266 Kan. at 314-15 ).
On the medical bill write-off issue, the Court of Appeals held that the district court erred in not admitting the $2,823.85 “bad debt” write-off, because it was self-paid by Adamson, and the $6,097.30 “commercial adjustment” write-off. But it did uphold tire exclusion of one write-off amounting to $3,879.65 after finding it was related to Medicaid. Adamson,
Punitive Damages
Bicknell first argues that the district court correctly denied Ad-amson’s punitive damages claim and the Court of Appeals erred in reversing it. He argues Adamson is not entitled to a new trial on punitive damages as ordered by the panel.
Standard of Review
K.S.A. 60-3703 provides a district court with discretion to permit an amendment for punitive damages. This triggers appellate court review of a district court’s ruling under an abuse of discretion standard. Lindsey v. Miami County National Bank,
Judicial discretion is abused if judicial action is: (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. McCullough,
Discussion
Punitive damages are awarded to punish the wrongdoer for “malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from tire commission of similar wrongs.” Cerretti v. Flint Hills Rural Electric Co-op Ass’n,
K.S.A. 60-3703 controls a plaintiffs ability to pursue punitive damages by requiring that tire district court act as a gatekeeper to determine what claims may be filed based on the statutory criteria. The statute provides that a trial court may permit a punitive damages claim to go forward if tire plaintiff establishes “that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209.” K.S.A. 60-3703. The term “probability” means “more likely than not.” Fusaro,
And while the ultimate inquiry is whether the plaintiff will probably prevail on the claim, the court must consider the “clear and convincing” evidentiary standard the plaintiff will eventually need to meet at trial.
In this case, the district court framed the question as whether it was likely Adamson could prove by clear and convincing evidence that Bicknell was under the influence of drugs to such a degree
To the district court, the absence of scientific evidence establishing Bicknell’s degree of impairment meant that no reasonable jury could find Adamson was entitled to punitive damages. But the inquiry should have focused on the act Bicknell allegedly performed, i.e., his choice to drive under circumstances that would likely cause a collision. Thus, this court holds that the district court abused its discretion by focusing so narrowly on the evidence of drug impairment levels. As we said in Reeves:
“One who with knowledge of existing conditions and aware from such knowledge that injury or death will likely or probably result from his or her conduct, and with reckless indifference to the consequences, consciously does some act or omits to discharge some duty, which produces the injurious result, is guilty of willful or wanton conduct.” Reeves,266 Kan. at 315 .
The evidence as framed by Adamson in support of her request to amend for punitive damages required the district court to consider whether Bicknell realized the imminence of injury to others and refrained from taking steps to prevent that injury because of indifference to the ultimate outcome that resulted based upon that evidence. The district court applied the incorrect legal standard and its abuse of discretion was based on an error of law, i.e., the discretion was guided by an erroneous legal conclusion.
On a sliding scale, wanton behavior falls between negligent behavior and willful or malicious misconduct. Wanton acts are those showing that the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome, not that the defendant lacked simple due care. In other words, “the actor [must] have reason to believe his act may injure another, and [cdmmits the act anyway,] being indifferent to whether of not it injures [another].” (Emphasis added.) Frazier v. Cities Service Oil Co.,
This court has found wanton conduct in several prior cases. In Smith v. Printup,
This court also upheld a jury’s punitive damages award based on the defendant’s wanton conduct when he drove while intoxicated, ran a stop sign, and hit the plaintiffs house. See Reeves,
“[The defendant] acknowledges he was acutely aware of the risk he was taking when he decided to drive his employer’s pickup truck in his extremely intoxicated state at night on wet residential streets. Clearly by [the defendant’s] own admission, there is sufficient evidence to support the trier of facts’ finding that Carlson acted recklessly and possessed the requisite degree of knowledge of danger.”266 Kan. at 314 .
But even with this, the defendant argued the wantonness standard was still not met. He claimed that even though he had admitted to realizing the risk of driving impaired, he was not indifferent to that risk because he claimed he drove as carefully as possible and tried to brake to avoid the collision. In addressing this argument, the Reeves court noted the defendant’s argument focused on the wrong conduct. Punitive damages, we held, were assessed based on tire defendant’s wanton conduct of choosing to drive under circumstances that would likely or probably result in a collision, not on the collision itself. The defendant’s “precautions and care . . . did little, if anything, to reduce that risk.”
The Reeves court concluded that the measures the defendant took were “predictably insufficient” to reduce the obvious risk and the “minimal care under the circumstances was that [the defendant] not drive.”
The Court of Appeals in this case cited Reeves when concluding that the district court should have submitted Adamson’s punitive damages claim to the jury. But the panel focused solely on the second step in the analysis—the Reeves court’s examination of whether that defendant behaved indifferently. The panel quoted Reeves as establishing that the conduct at issue was Bicknell’s choice to drive under circumstances likely to result in a collision. Adamson,
Certainly, the facts in this case are similar to Reeves because Bicknell drove after consuming marijuana and cocaine and later admitted his drug use affected his driving. But the evidence regarding knowledge of the risk at the time Bicknell drove is different. And on this point, Reeves offers no helpful analysis because the defendant in that case “acknowledge[ed] he was acutely aware of the risk he was taking.”
Obviously, the court must consider all the evidence cited by Adamson in her motions seeking punitive damages, not just Bick-nell’s testimony. But the evidence of Bicknell’s knowledge of his impairment presents a closer question than the Court of Appeals acknowledged, and it should not have made the findings reserved to the district court. For that reason, we remand to the district court for a rehearing on Adamson’s motion seeking punitive damages because factual findings must still be made.
On rehearing, the district court should consider the same evidence cited by Adamson in her original motion and the motion for
Collateral Source
It is unnecessary to delve too deeply into this issue because it is not preserved for appeal.
Adamson effectively challenged only the difference between her original request to admit $42,579.34 and the $23,600 awarded by the jury. In doing so, she acquiesced to the amount of reasonable medical expenses as the amount paid, waiving her right to argue on appeal that evidence of the amount written-off was also admissible. Going into trial, Adamson accepted Bates as controlling admissibility of her Medicaid insurance.
More importantly, Adamson stipulated through the admission of a prepared trial exhibit that her reasonable medical expenses were $26,346.21. At trial, Adamson’s attorney said the parties jointly agreed to the exhibit in order to assist the jury and to avoid going through all the medical bills. Adamson’s attorney said, “The parties have agreed that the amounts set out by the various providers are the reasonable and customary charge for the services for which plaintiff claims were incurred as a result of this automobile accident.”
The Court of Appeals decision is affirmed in part and reversed in part. The district court’s decision is affirmed in part and reversed in part, and the case is remanded with directions to the district court for further proceedings.
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Concurrence in Part
concurring in part and dissenting in part: I respectfully dissent from the majority’s decision to reverse the district court’s denial of Tammy J. Adamson’s motion to amend to add a claim for punitive damages. I concur in the majority’s conclusion that Adamson did not preserve the second issue regarding the admissibility of medical bill write-offs.
Regarding the punitive damages issue, I agree with much of the majority’s analysis but disagree with its conclusion that the district
“[T]he court concludes that plaintiff can establish that defendant smoked marijuana approximately four hours before the accident and that defendant’s urine tested positive for marijuana and cocaine. Plaintiff has presented nothing of evi-dentiary value to quantify the amount of marijuana or cocaine in defendant’s system at the time of the accident, nor anything of evidentiary value to demonstrate that the quantity of drugs in defendant’s system was sufficient to affect defendant’s ability to operate a motor vehicle.”
The majority reads these statements as imposing an incorrect legal standard. See Adamson v. Bicknell, (No. 99,503, this day decided), slip op. at 13-14. In my view, when these statements are considered in the context of the district court’s entire order, they merely reflect the district court’s conclusion that the evidence of wanton conduct is not clear and convincing and, consequently, that Adamson did not meet her burden of establishing a reasonable probability that a jury would award punitive damages.
The statements on which the majority focuses are at the end of a section of the district court’s order that begins with the following sentence, which reflects the ultimate basis of the district court’s ruling:
“After considering all evidence in the record, and making all reasonable inferences in favor of plaintiff, the court concludes that it is unlikely that plaintiff can prove by clear and convincing evidence that defendant was under the influence of drugs to such a degree that defendant’s operation of his vehicle at the time in question constituted willful or wanton conduct, and thus denies plaintiffs motion to amend to add a claim for punitive damages.”
The district court then supported this conclusion with a number of points. First, the district court considered the evidence regard
Second, tire district court discounted Adamson’s argument that clear and convincing evidence of Kody Bicknell’s impairment was provided because Bicknell had executed a diversion agreement in which he stipulated he was under the influence of drugs at the time of the accident. The district court noted the stipulation did not include a statement that Bicknell was under the influence to the point of being unable to safely operate a vehicle. More significantly, according to the district court, tire fact Bicknell originally faced felony charges that were reduced to misdemeanors when he agreed to the diversion meant that “any rational trier of facts would consider defendant’s 'admission’ that he was driving under the influence of drugs with a jaundiced eye.”
Third, the district court focused on Bicknell’s deposition testimony regarding his posttreatment realization that he was probably impaired at tire time of the accident. This statement, tire district court concluded, was “sufficiently qualified that, either standing alone or in context with all other evidence, it falls short of the quality necessary to constitute clear and convincing evidence that defendant was under the influence of drugs that rendered him incapable of safely operating his vehicle at the time of the accident.”
These conclusions were followed by the statements on which the majority focuses. As quoted above, in these statements the district court noted that Adamson established Bicknell’s use of drugs at least 4 hours before the accident. She could not, however, according to the district court, establish that the use of drugs impaired Bicknell’s ability to safely operate his vehicle. Having reviewed the
Contrary to the majority’s conclusion, these statements do not mean the district court required Adamson to present evidence that the level of drugs exceeded a specific amount; rather, the district court systematically examined the evidence for proof of impairment. By noting there was no scientific evidence, the district court was merely checking off yet another way—at least the fourth by my count—in which the evidence failed to clearly and convincingly prove Bicknell was impaired. If Bicknell was not impaired, there could be no basis for him to have a reason to believe his driving would injure another; he could not have acted with a realization of the imminence of danger or with reckless disregard or complete indifference to the probable consequences of the act as required by the wantonness test stated in Reeves v. Carlson,
The district court’s ruling, in my view, fully complied with the majority’s initial summary of the Reeves wantonness test and the majority’s direction to the district court to focus on “the act Bick-nell allegedly performed, i.e., his choice to drive under circumstances that would likely cause a collision.” Adamson, slip op. at 13. This directive essentially asks the district court to look at the circumstances before the accident and weigh the probability that a jury would find the driver was impaired and that the driver was aware that his or her impaired driving would put others at risk. The district court already undertook this prospective examination and found the evidence wanting in this case, concluding it was not probable a jury would find that Bicknell was impaired to the point of being incapable of safely operating a vehicle.
“the deposition testimony that the crash occurred on a clear day, Bicknell’s apparent inability to control his vehicle to avoid rear-ending Adamson’s car, his on-scene admission to the trooper that the accident was his fault, the medical test results indicating that both marijuana and cocaine were present in Bicknell’s system at the time of the accident, and the investigating trooper’s conclusion drugs contributed to the crash and his report that drugs were found in Bicknell’s vehicle. The district court should also consider Bicknell’s postcrash deposition testimony, which includes his statement that only in retrospect did he believe his driving under the influence contributed to the crash. Finally, the district court should consider Bicknell’s admission that his eyes were off the road before the crash, that he saw Adamson’s car ‘quite a ways’ ahead, and that eyewitnesses observed him driving at a high rate of speed and zigzagging in and out of traffic before the accident.” Adamson, slip op. at 17.
Only the last sentence regarding BicknelFs admission suggests prospective factors that might have indicated to Bicknell that he was impaired and that his driving while impaired created an imminent danger. In all other respects, these considerations retrospectively focus on the cause of the accident. Yet, the majority had earlier stated that the district court erred by “looking for evidence that the drug use caused the accident. This analysis sets the bar too high.” Adamson, slip op. at 13. These conflicting directions leave the district court with a difficult and inconsistent task on remand and also underscore the shifting focus and inconsistency of the majority’s analysis.
The district court applied the correct legal standard—the wantonness test as initially stated by the majority—when the court examined the evidence regarding whether Bicknell drove while impaired to the point of being unable to safely drive a vehicle. Consequently, in this appeal, this court’s task should be to review the district court’s conclusion that the evidence was not sufficiently clear and convincing to make it probable that a jury would return a verdict for punitive damages. The standard for that review is the traditional abuse of discretion test as stated in Fusaro v. First Family Mtg. Corp.,
Consequently, I would affirm the district court’s decision to deny Adamson’s motion to amend to add a claim for punitive damages.