AZAR NUT COMPANY, Petitioner, v. Lorretta CAILLE, Respondent.
No. C-6212.
Supreme Court of Texas.
July 8, 1987.
Rehearing Denied Sept. 16, 1987.
734 S.W.2d 667
The majority here recognizes that Smith has a single or a few contacts with the forum and has “no physical ties to Texas” but determines nevertheless, that sufficient contacts exist to support the jurisdiction. The majority, however, cannot justify the finding of jurisdiction precisely because Smith‘s contacts with the forum are certainly “attenuated.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2186, 85 L.Ed.2d 528 (1985). The due process clause is not being used here as a shield to avoid its obligations but rather as the guaranteed protection against a suit which offends the traditional notions of fair play. Burger King Corp., 105 S.Ct. at 2183. Specifically in this case, the contacts the majority argues are sufficient to gain jurisdiction are solely the result of attenuated contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984).
The only contact that Smith has with Texas is a proposed joint venture agreement with Advanced Concrete which was specifically conditioned on the satisfactory and sufficient bonding of the project. No bond was ever issued and the joint venture agreement was never consummated. Furthermore, the contract for the elevators, which is the center of this litigation, was solely between Otis Engineering and Advanced Concrete. Smith did not ratify the contract and Smith was not even associated with Advanced Concrete until after the contract was created.
This case is most like the Helicopteros case in terms of the contacts of the nonresident defendant with the forum and should be decided accordingly. I would reverse the judgment of the court of appeals and hold that Zac Smith & Company has insufficient minimum contacts with Texas in order to maintain jurisdiction.
RAY and WALLACE, JJ., join in this dissent.
W.A. Thurmond and Jeffrey S. Alley (Scott, Hulse, Marshall, Feuille, Finger & Thurmond), El Paso, for petitioner.
Raymond C. Caballero (Caballero & Panetta), El Paso, Phillip D. Hardberger (Hardberger & Vega), San Antonio, for respondent.
This case concerns whether punitive damages are recoverable under
Lorretta Caille, age 63, was hurt on the job when a file cabinet tipped over, allowing a flower pot on the top to strike her on the head. A few days after the accident Caille noted a ringing in her ears and began to complain of vertigo and headaches, none of which she had experienced before. When she filed a weekly status report which noted her ear problems and headaches, her supervisor rewrote the report and deleted all reference to those injuries.
Azar employees prepared Caille‘s first report of injury which mentioned only a cut on the hand and did not refer to any of the other injuries suffered by Caille. Caille went to an audiologist who discovered that she had a severe right ear impairment. When Caille prepared a supplement to the first report of injury, setting out in detail her ear injuries, the clerk or the company refused to sign it. That same clerk reported to the secretary of the company‘s president that Caille was doing something dishonest by reporting the ear injury. When Caille filed a notice of claim with the Industrial Accident Board, her supervisor walked into her office, threw her file on her desk and demanded an explanation. When she told him of her injuries he exclaimed “You have a real problem with me.” When Caille tried to see the president and vice president of the company to explain her situation, they refused to see her or to even review her medical reports to determine the validity of her claim. Three weeks later, Caille‘s supervisor told her she was fired. Ed Azar, president of the company, testified that he thought the claim was false and that he would not keep an employee who had filed a false claim.
In answers to issues presented, the jury awarded $167,464 for lost wages and insurance benefits. The jury further found that Azar acted willfully and maliciously in discharging Caille, and thereafter awarded her $175,000 in punitive damages. The court of appeals, with one judge dissenting, affirmed at 720 S.W.2d 685.
No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmens’ Compensation Act, or has testified or is about to testify in any such proceeding.
The first reason for our holding is the legislative intent behind
“Reasonable” is defined as “not immoderate; not excessive; not unjust; tolerable; moderate; sensible; sane.” Webster‘s New Twentieth Century Dictionary 1502 (2d ed. 1975). “Reasonable” seems directed more to the amount of damages recoverable, or to the relation of injury to the damages awarded. Punitive damages, as a general principle, have long been seen as an important policy tool and a valid measure of damages. Hofer v. Lavender, 679 S.W.2d 470, 474-75 (Tex.1984) (discussing policy and history of punitive damages). We cannot see how the word “reasonable” could be read so as to exclude an entire class of damages normally available under Texas law.
Furthermore, such an exclusion would be against what we perceive to be the intent of the entire provision.
We deem it proper and necessary that exemplary damages be assessed against an employer under appropriate circumstances in strict conformity with the purposes thereof, to prevent the practice [of retaliatory discharge.] In the absence of the deterrent effect of punitive damages, there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workers’ compensation claim.
Webb v. Dayton Tire & Rubber Co., 697 P.2d 519, 523 (Okla.1985). We agree with such reasoning because the threat of punitive damages is inherently more likely to restrain bad faith employers from wrongfully terminating employees, and is therefore consistent with the purposes of the statute.
Finally, we consider
In conclusion, we hold that punitive damages are envisioned by the legislature as within the ambit of “reasonable damages suffered by an employee.” Thus, the holding of the court of appeals is in all things affirmed.
SPEARS, J., files a concurring and dissenting opinion in which HILL, C.J., and CAMPBELL, J., join.
CAMPBELL, J., files a concurring and dissenting opinion.
SPEARS, Justice, concurring and dissenting.
I concur in part and dissent in part. While I agree with the majority‘s holding affirming Caille‘s actual damage award, I would hold that she cannot recover punitive damages.
At common law the doctrine of employment-at-will prevented an employee who was discharged in retaliation for filing a workers’ compensation claim from having a cause of action. The legislature adopted
The issue in this cause is whether exemplary damages may be awarded under
Exemplary damages are not included within the plain meaning of the statutory language “reasonable damages suffered by an employee.” (emphasis added). “Suffered” means experienced, endured, felt, undergone, or sustained. Consolidated Underwriters v. Foxworth, 196 S.W.2d 87, 94 (Tex.Civ.App.—Beaumont 1946, no writ); WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY 2284 (1981). Exemplary damages are not compensation for damages “suffered” by a plaintiff; rather, they “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.” Cavnar v. Quality Control Parking Inc., 696 S.W.2d 549, 556 (Tex.1985). The majority ignores this time-honored distinction.
North Carolina has a retaliatory discharge statute,
[T]he wording of the statute clearly limits recovery to damages “suffered by the employee” as a result of the employers violation of the Workers’ Compensation Act. ... Punitive damages by their very nature are not damages “suffered” by anyone. Rather, they are damages awarded to punish a wrongdoer, over and above the amount required to compensate for the injury. Whether, as the plaintiff argues, the purpose of the Workers’ Compensation Act would be better served by the threat of punitive damages for its violation is not for this Court to decide. We are bound by the wording of
G.S. 97-6.1 , and any amendment thereto is within the realm of the legislature.
The majority relies on Webb v. Dayton Tire & Rubber Co., 697 P.2d 519, 522-23 (Okla.1985) to support its holding. Webb is clearly distinguishable from the present case because the Webb court relied on
Any action for breach of an obligation not arising on contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury in addition to actual damages, may give damages for the sake of example and by way of punishing the defendant.
The court concluded that in the absence of a clear expression of contrary legislative intent,
In those Texas statutes creating a cause of action for retaliatory discharge, the legislature has specifically provided for the recovery of exemplary damages.
(a) A public employee who sues under this Act may recover:
(1) actual damages;
(2) exemplary damages;
(3) costs of court; and
(4) attorneys fees.
The legislature‘s failure to use similar language in
This court is not responsible for omissions in legislation. Seay v. Hall, 677 S.W.2d 19, 25 (Tex.1984). We have the power to interpret and determine the constitutionality of a statute; however, “it would be a usurpation of our powers to add language to a law where the legislature has refrained.” Id. The majority opinion violates these valid maxims by disregarding the plain meaning of the statute and rewriting the statute to further some vague disingenuous public policy goals. The legislature expressly limited worker‘s compensation retaliatory discharge damages to those “suffered” by the employee. Exemplary damages are not “suffered” by a plaintiff and thus should not be recoverable in suits brought under
HILL, C.J., and CAMPBELL, J., join in this concurring and dissenting opinion.
CAMPBELL, Justice, concurring and dissenting.
I concur that an employee discharged for good faith filing of a claim under the Worker‘s Compensation Act is entitled to reasonable damages suffered. I do not agree that “reasonable damages suffered” includes punitive damages.
Sally PROFFER
Relator
v.
The Honorable John G. YATES, Judge, et al., Respondents.
No. C-6140.
Supreme Court of Texas.
July 15, 1987.
Rehearing Denied Sept. 16, 1987.