Gordon v. State

• Decision Date: 27 August 1991
• Docket Number: K-M,No. 90-2497,90-2497
• Citation: 585 So.2d 1033
• Parties: 16 Fla. L. Weekly D2256 Harvey GORDON, Appellant, v. STATE of Florida,art Corporation, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1033

585 So.2d 1033

16 Fla. L. Weekly D2256

Harvey GORDON, Appellant, v. STATE of Florida, K-Mart Corporation, etc., et al., Appellees.

No. 90-2497.

District Court of Appeal of Florida Third District.

Aug. 27, 1991.

Bernard B. Weksler, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., and Craig B. Willis, Asst. Atty. Gen., Tallahassee; Peters Pickle Niemoeller Robertson Lax & Parsons and Yvette Rhodes Prescott, Miami, for appellees.

Roy D. Wasson, Miami, for Academy of Florida Trial Lawyers as amicus curiae.

Mershon Sawyer Johnston Dunwody & Cole and Edward T. O'Donnell, Miami, for Product Liability Advisory Council as amicus curiae.

Before SCHWARTZ, C.J., and NESBITT and GERSTEN, JJ.

SCHWARTZ, Chief Judge.

By this decision, we uphold the legislature's authority to allot a portion of a punitive damages award to the state.

I

Harvey Gordon was falsely imprisoned and battered by employees of K-Mart Corporation in an incident which occurred in one of its stores on February 16, 1987. In the ensuing action by Gordon against K-Mart, he recovered a jury verdict for $72,500 in compensatory damages and $512,600 in punitive damages. A final judgment for these amounts was entered in Gordon's favor on July 27, 1989, and post-trial motions were denied on October 5, 1989. Subsequently, in K-Mart Corp. v. Gordon, 565 So.2d 834 (Fla. 3d DCA 1990) (per curiam), the judgment was entirely affirmed.

After the issuance of the mandate, K-Mart, on September 20, 1990, moved to amend the final judgment pursuant to Florida Rule of Civil Procedure 1.540, and the State of Florida moved to intervene as a party plaintiff for the purpose of applying section 768.73(2)(b), Florida Statutes (Supp.1986). ¹ That section, which was part of the Tort Reform and Insurance Act of 1986, which became effective July 1, 1986, requires that 60% of any punitive damages award be payable either to the Public Assistance Trust Fund or, as in this case, to the General Revenue Fund of the state. On October 9, 1990, the trial court granted these motions and entered the following final judgment nunc pro tunc the date of the original judgment:

PURSUANT TO the verdict rendered in this action, it is

ORDERED AND ADJUDGED that the Plaintiff, HARVEY GORDON, recover from the Defendants, K MART CORPORATION, DAVID SPARROCK, and PETER MIRAMBEAU, the sum of TWO HUNDRED SEVENTY-SEVEN THOUSAND THREE HUNDRED AND 00/100 ($277,300.00) with costs to be hereinafter taxed, that shall bear interest at the rate set by Florida Statute for which let execution issue.

Pursuant to section 768.73, Florida Statutes (1987) a judgment is hereby entered in favor of the General Revenue Fund of the State of Florida in the amount of THREE HUNDRED SEVEN THOUSAND TWO HUNDRED AND 00/100 DOLLARS ($307,200.00) which sum represents sixty (60) percent of the punitive damage award.

2. This Court hereby directs the Clerk to amend the Final Judgment accordingly.

Gordon now appeals from that portion of the amended judgment which, in effect, transfers $307,200.00 from him to the State of Florida. ² He raises the dual contentions that section 768.73(2)(b) is unconstitutional and that the manner in which his initial judgment was amended to reflect the state's recovery was procedurally invalid. We find that neither of these contentions has merit.

II

With all due respect, ³ we find that Gordon's constitutional attacks upon the statute are very insubstantial:

1. No deprivation of due process right to property.

The appellant's first claim--that the statute constitutes an unconstitutional "taking" of a property right without due process--is wholly without merit. This is true simply because he has no cognizable, protectable right to the recovery of punitive damages at all. Unlike the right to compensatory damages, see Smith v. Department of Ins., 507 So.2d 1080 (Fla.1987); University of Miami v. Echarte, 585 So.2d 293 (Fla. 3d DCA 1991), the allowance of punitive damages is based entirely upon considerations of public policy. Accordingly, it is clear that the very existence of an inchoate claim for punitive damages is subject to the plenary authority of the ultimate policy-maker under our system, the legislature. In the exercise of that discretion, it may place conditions upon such a recovery or even abolish it altogether. Ross v. Gore, 48 So.2d 412 (Fla.1950); cf. Pacific Mutual Life Ins. Co. v. Haslip, --- U.S. ----, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). As our court clearly stated in Ross:

As to question No. 1, plaintiff contends that the statute has "changed the amount of damages recoverable, and thus has unconstitutionally impaired appellant's rights." There is no merit to this contention. As to the denial of "punitive damages," such damages are allowed, not as compensation to a plaintiff, but as a deterrent to others inclined to commit a similar offense, and their allowance depends on malice, moral turpitude, wantonness or outrageousness of tort. Dr. P. Phillips & Sons, Inc., v. Kilgore, 152 Fla. 578, 12 So.2d 465 [ (1943) ]. The right to have punitive damages assessed is not property; and it is the general rule that, until a judgment is rendered, there is no vested right in a claim for punitive damages. Kelly v. Hall et al., 191 Ga. 470, 12 S.E.2d 881 [ (1941) ]; Osborn v. Leach, 135 N.C. 628, 47 S.E. 811 [ (1904) ]. It cannot, then, be said that the denial of punitive damages has unconstitutionally impaired any property rights of appellant.

Ross, 48 So.2d at 414; accord Louisville & Nashville R.R. v. Street, 164 Ala. 155, 51 So. 306 (1909); Smith v. Hill, 12 Ill.2d 588, 147 N.E.2d 321 (1958).

In addition, because the incident in question, much less the entry of the final judgment, occurred subsequent to the effective date of the statute, the case is governed also by the rules that (a) where an existing statute provides that funds recovered under it are subject to a prior claim, a party cannot thereafter obtain a vested right to that claim, see United States Fidelity & Guar. Co. v. Department of Ins., 453 So.2d 1355 (Fla.1984), and that (b) even substantive rights and obligations created by statute do not vest until the accrual of the cause of action which gives rise to them. L. Ross, Inc. v. R.W. Roberts Const. Co., 466 So.2d 1096 (Fla. 5th DCA 1985), aff'd, 481 So.2d 484 (Fla.1986). For all these reasons, we summarily reject the contention that the state has invalidly taken a property right of the plaintiff. Ross, 48 So.2d at 412.

2. No violation of substantive due process rights.

We find Gordon's alternative contention that section 768.73(2)(b) is "arbitrary" and "unreasonable" and therefore somehow deprives him of his rights to substantive due process on that basis even less persuasive. To successfully surmount such an objection, it need only be shown that the statute under attack bears a rational relation to a legitimate legislative interest or objective. Abdala v. World Omni Leasing, Inc., 583 So.2d 330 (Fla.1991); Vildibill v. Johnson, 492 So.2d 1047 (Fla.1986). At least two such bases of 768.73(2)(b) are readily apparent:

(a) it is clear that the present statute ⁴ is founded upon and directly serves one of the most basic justifications for the existence of punitive damages in the first place: to serve as punishment for what amounts to a public wrong and thus to protect the public by inhibiting future such conduct. Ingram v. Pettit, 340 So.2d 922, 924 (Fla.1976) ("It has long been established that the availability of punitive damages is reserved to those kinds of cases where private injuries partake of public wrongs. The intentional infliction of harm, or a recklessness which is the result of an intentional act, authorize punishment which may deter future harm to the public by the particular party involved and by others acting similarly."); Florida Southern R.R. v. Hirst, 30 Fla. 1, 11 So. 506 (1892); 22 Am.Jur.2d Damages Sec. 734 (1988) ("The intentional or reckless infliction of harm may be likened to culpable negligence in criminal cases and authorizes the infliction of punishment which may deter future harm to the public. So viewed, punitive damages are allowed on grounds of public policy and in the interest of society and for the public benefit."). The allotment of a portion of these funds directly to the State as a representative of the public whose interest the award is thus largely designed to serve, may obviously have been viewed by the legislature as an appropriate means of effecting that legitimate purpose. ⁵ We agree with the thrust of Justice Shores's opinion in Fuller v. Preferred Risk Life Ins. Co., 577 So.2d 878, 886-87 (Ala.1991) (Shores, J., concurring specially), that, on this basis, the courts may make such an allocation even in the absence of statutory authorization:

If the court concludes that the amount is not so excessive as to deprive the defendant of his property in contravention of Sec. 13, Ala. Constitution 1901, it nevertheless may also determine that it would be in the best interest of justice to require the plaintiff to accept less than all of the amount and to require the defendant to devote a part of the amount to such purposes as the court may determine would best serve the goals for which punitive damages are allowed in the first place: vindication of the public and deterrence to the defendant and to others who might commit similar wrongs in the future.

* * * * * *

The courts, however, have inherent authority to allocate punitive damages, with jurisdiction over both plaintiff and defendant, by reducing the amount that the plaintiff is to receive to less than the full amount of the verdict, and directing the defendant to pay a part of a punitive damages award to the state general fund or any special fund devoted to the furtherance of justice on behalf of all the people. To do so in proper cases could serve the purpose for which punitive damages were authorized to a greater degree than would allowing the plaintiff to...