Tillett v. Lippert
909 P.2d 1158
Mont.
1996
Check Treatment
JUSTICE ERDMANN

dissenting.

I concur with the Court’s holding in Issue 1. However, I dissent from the majority’s holding in Issue 2 that the District Court did not err in awarding punitive damages against the Estate of Kenneth Lippert. However reprehensible Mr. Lippert’s conduct, under the plain language of § 27-1-220, MCA, and the rationale of a majority of jurisdictions which have examined this issue, punitive damages are not awardable against a tortfeasor’s estate.

The majority has chosen to follow the reasoning of a very narrow minority — four out of thirty-one jurisdictions — to impose punitive damages on a tortfeasor’s estate. See 98 Dick. L. Rev. 329, 333 (1994). The majority proclaims it has made an example of Kenneth Lippert in that one cannot escape punishment through death. Surely one who is not deterred by our criminal laws from engaging in outrageous conduct would likewise not be deterred by an award of punitive damages on his estate. Lohr v. Byrd (Fla. 1988), 522 So. 2d 845, 847. When through death the tortfeasor is not punished, the general deterrent effect is diminished. Hofer v. Lavender (Tex. 1984), 679 S.W.2d 470, 478 (Spears, J., dissenting).

In the majority decision, this Court suggests that Montana’s survival act and dual purpose punitive damage statute distinguish Montana from those jurisdictions which do not allow an award of punitive damages against an estate of a tortfeasor. This suggestion is inappropriate given that many of the courts which have disallowed such punitive damages have survival acts and dual purposes behind an award of punitive damages as well. Nevada’s state statutes allow for an award of punitive damages for “sake of example and by way of punishing the defendant.” Nev. Rev. Stat. § 42.010. Nevertheless, in Allen v. Anderson (Nev. 1977), 562 P.2d 487, 489, its Supreme Court held that punitive damage claims do not survive the death of a tortfeasor.

*10 The majority cites specifically to the Wyoming Supreme Court’s decision in Parker v. Artery (Wyo. 1995), 889 P.2d 520, 525, where the Wyoming court chose not to impose punitive damages on an estate. Wyoming does not have a statute stating the purposes behind punitive damages, however, the state does have a survival act which provides that causes of action for injuries to person and property survive the death of a wrongdoer. Wyo. Stat. § 1-4-101. Even so, the Wyoming court denied punitive damages in a personal injury action against an estate because “[p]ublic policy is not served by permitting the recovery of punitive damages against the estate of a deceased tortfeasor.” The Wyoming court recognized that "[t]he purpose of punitive damages is to punish the tortfeasor and deter that person from repeating the wrongful act in the future; [therefore], the reason for awarding punitive damages ceases to exist with the death of the tortfeasor.” Parker, 889 P.2d at 525.

Florida also has a survival statute which provides that “[n]o ... action shall die with the person.” Fla. Stat. ch. 46-021. The Florida Supreme Court, however, rejected the imposition of punitive damages on a decedent’s estate stating that

[separation of the “punitive” and “exemplary” aspects of [an award for punitive damages] is unjustified because general deterrence logically depends upon the perception of punishment suffered by the wrongdoer. When the punishment is diffused and unjustly inflicted upon the innocent, through a doctrine analogous to attainder, the deterrent effect is frustrated. It is unrealistic to suppose that such awards deter other prospective tortfeasors, especially if the criminal laws fail to do so.

Lohr, 522 So. 2d at 846 (quoting Byrd v. Lohr (Fla. Dist. Ct. App. 1986), 488 So. 2d 138, 139).

Alaska’s Supreme Court took similar notice of its state’s survival statute which explicitly provided that plaintiff’s causes of action survive against a defendant’s estate. Doe v. Colligan (Alaska 1988), 753 P.2d 144 (referring to Alaska Stat. § 09.55.570). The court, however, denied an award of punitive damages based on the purposes behind such an award. The court concluded that

[t]he concomitant goal of general deterrence depends significantly upon the punishment function of an award of punitive damages. Since the deceased tortfeasor cannot be punished, the general deterrent effect becomes speculative at best and thus, in our view, falls short of furnishing a justifiable ground for an award of punitive damages against the tortfeasor’s estate.

*11 Doe, 753 P.2d at 146.

New Mexico’s Legislature adopted a jury instruction which provided that punitive damages are awarded for punishment of the defendant as well as the deterrence of others. Regardless, the state’s supreme court declared that the deterrent effect of punitive damages on others is inextricably tied to the punishment of the tortfeasor. “If the tort-feasor cannot be punished, it follows that there can be no general deterrence.” State Farm Mut. Auto. Ins. v. Maidment (N.M. App. 1988), 761 P.2d 446, 449.

The Kansas courts have acknowledged the dual purpose of punitive damages in spite of no statutory language specifically stating those purposes. In Fehrenbacher v. Quackenbush (D. Kan. 1991), 759 F. Supp. 1516, 1521 (citing Wisker v. Hart (Kan. 1988), 766 P.2d 168), a federal district court acknowledged that while punitive damages are awarded to punish the wrongdoer, the ultimate purpose of punitive damages is to restrain and deter others from the commission of similar wrongs. Nevertheless, the court concluded that Kansas law does not permit an award of punitive damages against the estate of a wrongdoer when it “would vicariously punish the heirs of the wrongdoer and would not serve to deter potential tortfeasors.” Fehrenbacher, 759 F. Supp. at 1521-22. In this case, the majority has failed in its attempt to distinguish the rationale and reasoning of the majority of jurisdictions which have considered this issue.

The majority cites to the Texas Supreme Court’s holding in Hofer for its reasoning that a dual purpose for punitive damages is a sufficient reason to distinguish itself from the majority of jurisdictions refusing to impose punitive damages on an estate. See Hofer, 679 S.W.2d at 475. The Hofer court predicates its decision on case law which provides that punitive damages have a purpose other than that of punishment and deterrence. Texas recognizes an award of punitive damages to compensate the plaintiff for remote losses such as inconvenience and attorney fees. Hofer, 679 S.W.2d at 474. The purpose of such compensation is not linked to the exemplary punishment of the defendant as is the purpose of deterrence. This Court, in Reintsma v. Lawson (1986), 223 Mont. 520, 525, 727 P.2d 1323, 1326, refused to award attorney fees and costs under the guise of punitive damages even though the Court determined that a punitive damage award was proper. It is therefore not appropriate for this Court to follow the reasoning in Hofer.

Moreover, the majority has ignored the plain language of the punitive damage statute and the legislature’s use of the conjunctive *12 “and.” “[A] judge or jury may award ... punitive damages for sake of example and for the purpose of punishing a defendant.” Section 27-1-220, MCA (emphasis added). The conjunctive “and” is used when the legislative intent is that all requirements must be fulfilled in order to comply with the statute. Sutherland Stat. Const. § 21.14 (5th ed). The purpose of such an award is for both the punishment of the tortfeasor and deterrence of all others by example. Even if the majority is correct in its determination that an award of punitive damages against an estate will act as a deterrent, Kenneth Lippert is simply beyond temporal punishment and the dual requirements of § 27-1-220, MCA, cannot be met.

While under the plain language of the statute it is unnecessary to resort to the legislative history of § 27-1-220, MCA, a review of that history reflects the legislature’s intent to preclude the award of punitive damages against estates. In discussing HB 363, which enacted the predecessor of § 27-1-220, MCA, the House Judiciary Committee acknowledged that “[p]unitive damages, being personal to the defendant, do not usually survive such defendant.” 49th Cong. (1985), H. R. Jud. Comm. (Feb. 12), Exh. A-pg 4 (exhibit prepared and submitted by Rep. John Cobb). Although the statute was later amended, the language pertinent to this case was not changed.

Furthermore, a plain reading of § 27-1-220, MCA, provides that punitive damages are appropriate when the “defendant is found guilty of actual malice.” In this case, the tortfeasor is dead and the defendant is the estate. The estate was not found guilty of any malice. Therefore, according to § 27-1-221, MCA, punitive damages against an estate would be inappropriate.

Certainly, deterrence is a legitimate purpose for an award of punitive damages. Nevertheless, it is the court’s punishment of the tortfeasor which is the deterrence and no court can punish the dead. If the legislature had intended that punitive damages were to be awarded against estates, they could have easily so specified. In this opinion, we have usurped the role of the legislature and improperly legislated a major policy change. Under the majority’s holding the innocent heirs are punished for the behavior of the deceased tortfeasor. I would reverse the District Court’s holding awarding punitive damages for assault against the Estate of Kenneth Lippert.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the foregoing dissenting opinion.