Biswell v. Duncan, No. 860124-CA

CourtUtah Court of Appeals
Writing for the CourtBILLINGS
Citation742 P.2d 80
PartiesRoyce BISWELL, Plaintiff and Appellant, v. Diane G. DUNCAN, Defendant and Respondent.
Decision Date18 August 1987
Docket NumberNo. 860124-CA

Page 80

742 P.2d 80
Royce BISWELL, Plaintiff and Appellant,
v.
Diane G. DUNCAN, Defendant and Respondent.
No. 860124-CA.
Court of Appeals of Utah.
Aug. 18, 1987.

Page 81

David M. Jorgensen, Robert J. DeBry, G. Steven Sullivan, Robert J. DeBry & Associates, Salt Lake City, for plaintiff and appellant.

R. Scott Williams, Harold L. Petersen, Strong & Hanni, Salt Lake City, for defendant and respondent.

Before BILLINGS, BENCH and ORME, JJ.

BILLINGS, Judge:

Appellant Royce Biswell ("Biswell") appeals from the district court's judgment granting respondent Diane Duncan's ("Duncan's") motion for partial summary judgment dismissing Biswell's punitive damage claim against Duncan, an intoxicated driver, and the court's refusal to give Biswell's proposed jury instruction regarding the extent of Duncan's liability for aggravating Biswell's pre-existing back injury. We reverse and remand.

FACTUAL BACKGROUND

Biswell sustained injuries when her car was hit by Duncan, a drunken driver, at the intersection of 5065 West and North Temple in Salt Lake City. Subsequent to the accident, Duncan was arrested and convicted for driving under the influence of alcohol,

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having a blood alcohol content of .10 percent in violation of Utah Code Ann. § 41-6-44 (1987).

Prior to the accident, Biswell suffered from degenerative changes in her spine and upper back. Biswell testified that this condition and other ailments had been "taken care of" prior to the accident and that she suffered no symptoms. Biswell claims that it was only after the accident that she experienced the pain and discomfort she currently experiences in her lower back. Biswell contends that the accident aggravated or "lit up" this latent condition causing permanent partial disability.

Biswell brought a civil action against Duncan seeking compensatory and punitive damages. Duncan filed a motion for partial summary judgment claiming that punitive damages were not recoverable in the context of drunk driving as a matter of law. Although Duncan's motion was captioned one for "partial summary judgment," both parties and the trial judge, in his memorandum decision, treated it as a motion for partial judgment on the pleadings. No factual development of Duncan's prior driving record, her behavior and attitude while drinking, or her conduct at the scene of the accident was presented to the court. 1 The parties focused exclusively on whether the standard for an award of punitive damages in Utah requires a finding of "actual malice" (intent to injure) or "legal malice" (reckless disregard of the rights of others).

The district court removed the issue of punitive damages from jury consideration ruling that punitive damages in Utah can be awarded only if "actual malice" or "malice in fact" is established. The issue of compensatory damages was tried to the jury. The trial court refused to give Biswell's proposed jury instruction on aggravation of a pre-existing condition. The jury awarded special damages of $436.63 and general damages of $500.00. This appeal ensued.

Three issues are presented on appeal. First, was the trial judge correct in ruling that punitive damages are not recoverable against this drunken driver because "actual malice" or "factual malice" was not pled? Second, does the imposition of punitive damages in a civil suit against a drunken driver contravene Utah's constitutional prohibition against double jeopardy? Third, did the trial court correctly instruct the jury as to the extent of a tortfeasor's liability for "lighting up" a pre-existing latent condition?

PUNITIVE DAMAGES

Biswell argues that the trial court erred in dismissing her claim for punitive damages, as a matter of law, ruling that she had not pled, and conceded she could not prove, "actual malice" or intent to injure. The issue of whether punitive damages can be imposed against drunken drivers in a civil action is one of first impression in Utah.

A.

To resolve the issue of whether punitive damages are recoverable in this State against intoxicated drivers, an examination of the relevant law in other jurisdictions is instructive. To date, twenty-two out of twenty-seven jurisdictions to consider the question have held that punitive damages may be assessed against the drunken driver in a civil proceeding: Alabama (Fritz v. Salva, 406 So.2d 884 (Ala.1981)); Arizona (Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900, 904 (1977)) (citing Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929)); Arkansas (Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203 (1948)); California (Taylor v. Super. Ct. of Los Angeles County, 24 Cal.3d 890, 598 P.2d 853, 157 Cal.Rptr. 693 (1979)); Connecticut, (Infeld v. Sullivan, 151 Conn. 506, 199 A.2d 693 (1964)); Delaware (Walczak v. Healy, 280 A.2d 728 (Del.1971)); Florida (Ingram v.

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Pettit, 340 So.2d 922 (Fla.1976)); Georgia (Chitwood v. Stoner, 60 Ga.App. 599, 4 S.E.2d 605 (1939)); Illinois (Madison v. Wigal, 18 Ill.App.2d 564, 153 N.E.2d 90 (1958)); Iowa (Nichols v. Hocke, 297 N.W.2d 205 (Iowa 1980)) (citing Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (1954)); Kentucky (Wiggington's Adm'r v. Rickert, 186 Ky. 650, 217 S.W. 933 (1920)); Minnesota (Hawkinson v. Geyer, 352 N.W.2d 784 (Minn.1984)); Mississippi (Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So.2d 572 (1951)); Missouri (Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982)) (remanded punitive damages issue to provide plaintiff an opportunity to develop and present evidence on intoxication); Montana (Allers v. Willis, 197 Mont. 499, 643 P.2d 592 (1982)); New Mexico (Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (N.M.App.1971)); New York (Colligan v. Fera, 76 Misc.2d 22, 349 N.Y.S.2d 306 (N.Y.Civ.Ct.1973)); North Carolina (Huff v. Chrismon, 68 N.C.App. 525, 315 S.E.2d 711 (1984)); Oregon (Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (1973)); Pennsylvania (Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970)); but see Harvey v. Hassinger, 315 Pa.Super. 97, 461 A.2d 814, 816 (1983) (noting that Focht was decided prior to the effective date of the Pennsylvania No-Fault Motor Vehicle Insurance Act, which became effective July 19, 1975); Tennessee (Pratt v. Duck, 28 Tenn.App. 502, 191 S.W.2d 562 (1945)); Texas (Crider v. Appelt, 696 S.W.2d 55 (Tex.Civ.App.1985)).

The jurisdictions that have held that punitive damages are not recoverable against the drunken driver are generally governed by a standard of punitive damages requiring "actual malice" or "malice in fact." See Comment, Punitive Damages and the Drunken Driver, 8 Pepperdine L.Rev. 117, 138 (1980). 2 These courts generally require "that state of mind under which a person's conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon other persons" before awarding punitive damages. Detling v. Chockley, 70 Ohio St.2d 134, 436 N.E.2d 208, 210 (1982) (quoting Columbus Finance v. Howard, 42 Ohio St.2d 178, 184, 327 N.E.2d 654, 658 (1975)).

B.

Because the standard for an award of punitive damages in Utah is determinative of our holding, we review the history of punitive damages in Utah. Prior to 1979, punitive damages could be imposed only after a finding of "actual malice" or "malice in fact." See, e.g., Kesler v. Rogers, 542 P.2d 354 (Utah 1975); Palombi v. D & C Builders, 22 Utah 2d 297, 452 P.2d 325 (Utah 1969); Powers v. Taylor, 14 Utah 2d 152, 379 P.2d 380 (1963); Smoot v. Lund, 13 Utah 2d 168, 369 P.2d 933 (1962); Holland v. Moreton, 10 Utah 2d 390, 353 P.2d 989 (1960); Evans v. Gaisford, 122 Utah 156, 247 P.2d 431 (1952); Murphy v. Booth, 36 Utah 285, 103 P. 768 (1909). In these cases, "actual malice" or "malice in fact" was defined as willful and malicious misconduct and described as an act done with evil intent and with the purpose of injuring. See Kesler, 542 P.2d at 359; see also

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McFarland v. Skaggs Companies, Inc., 678 P.2d 298, 303 n. 11 (Utah 1984).

In 1979, the Utah Supreme Court had an opportunity to articulate the proper standard to be applied in assessing punitive damages in false imprisonment cases. Terry v. Zions Coop. Mercantile Inst., 605 P.2d 314 (Utah 1979). The supreme court held that in false imprisonment cases the defendant need not manifest "actual malice" or "malice in fact." Rather, malice could be implied from conduct.

This presumed malice or malice in law does not consist of personal hate or ill will of one person towards another but rather refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's conduct toward that citizen. Therefore, in false imprisonment cases the defendant need not act with actual ill will or hatred toward the person being confined. In such cases malice in law will be implied from unjustifiable conduct....

Id. at 327. This "reckless disregard" standard was extended to tort cases other than false imprisonment cases in Branch v. Western Petroleum, Inc., 657 P.2d 267, 277 (Utah 1982) (improper disposal of waste water). The supreme court, citing Terry, held that punitive damages may be awarded when one acts with reckless indifference and disregard of the law and his fellow citizens. Id. The "actual malice" or "reckless disregard" standard was reaffirmed in Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179 (Utah 1983):

A defendant's conduct must be malicious or in reckless disregard for the rights of others, although actual intent to cause injury is not necessary.

Id. at 1186 (emphasis added).

In 1984 the supreme court reconsidered its position in Terry and adopted a different standard for the imposition of punitive damages in false imprisonment cases:

[W]e adopt as the appropriate standard for determining the availability of a punitive damage award in an action for false imprisonment that of "malice in fact" or "actual malice."

McFarland, 678 P.2d at 304. However, the language and reasoning of McFarland is limited to false imprisonment cases. This...

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27 practice notes
  • Johnson v. Rogers, No. 20622
    • United States
    • Utah Supreme Court
    • August 25, 1988
    ...In this state, the Utah Court of Appeals has held that punitive damages are available in drunk driving cases. In Biswell v. Duncan, 742 P.2d 80 (Utah Ct.App.1987), the court determined that punitive damages may be awarded upon proof of either actual or legal malice and that the imposition o......
  • Olson v. Walker, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 27, 1989
    ...limit. Intoxication alone, in the absence of other compelling circumstances, may not warrant punitive damages. E.g., Biswell v. Duncan, 742 P.2d 80 (Utah Ct.App.1987). In this case, however, additional circumstances beyond intoxication were clearly shown. The trial court properly allowed th......
  • Amica Mut. Ins. Co. v. Schettler, No. 870488-CA
    • United States
    • Court of Appeals of Utah
    • January 12, 1989
    ...reckless indifference toward, and disregard of, the rights of others. Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988); Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct.App.1987). The trial court found, and the record supports that Schettler's conduct warranted the imposition of punitive As refl......
  • Sutherlin v. Fenenga, Nos. 10510
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 24, 1991
    ...between her alleged negligent acts and decedent's death. See Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986); Biswell v. Duncan, 742 P.2d 80 (Utah App.1987). She also contends that there was no evidence that her mental state was sufficiently culpable to permit punitive Page 357 [111 N......
  • Request a trial to view additional results
27 cases
  • Johnson v. Rogers, No. 20622
    • United States
    • Utah Supreme Court
    • August 25, 1988
    ...In this state, the Utah Court of Appeals has held that punitive damages are available in drunk driving cases. In Biswell v. Duncan, 742 P.2d 80 (Utah Ct.App.1987), the court determined that punitive damages may be awarded upon proof of either actual or legal malice and that the imposition o......
  • Olson v. Walker, No. 1
    • United States
    • Court of Appeals of Arizona
    • June 27, 1989
    ...limit. Intoxication alone, in the absence of other compelling circumstances, may not warrant punitive damages. E.g., Biswell v. Duncan, 742 P.2d 80 (Utah Ct.App.1987). In this case, however, additional circumstances beyond intoxication were clearly shown. The trial court properly allowed th......
  • Amica Mut. Ins. Co. v. Schettler, No. 870488-CA
    • United States
    • Court of Appeals of Utah
    • January 12, 1989
    ...reckless indifference toward, and disregard of, the rights of others. Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988); Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct.App.1987). The trial court found, and the record supports that Schettler's conduct warranted the imposition of punitive As refl......
  • Sutherlin v. Fenenga, Nos. 10510
    • United States
    • New Mexico Court of Appeals of New Mexico
    • January 24, 1991
    ...between her alleged negligent acts and decedent's death. See Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986); Biswell v. Duncan, 742 P.2d 80 (Utah App.1987). She also contends that there was no evidence that her mental state was sufficiently culpable to permit punitive Page 357 [111 N......
  • Request a trial to view additional results

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