Hoskins v. Business Men's Assur.

• Decision Date: 23 July 2002
• Docket Number: No. SC 83727.,SC 83727.
• Citation: 79 S.W.3d 901
• Parties: Forest "Dino" HOSKINS, et al., Respondents, v. BUSINESS MEN'S ASSURANCE, Defendant, Federal-Mogul Corporation and T & N, Ltd., Appellants, State of Missouri, Respondent.
• Court: Missouri Supreme Court

79 S.W.3d 901

Forest "Dino" HOSKINS, et al., Respondents, v.BUSINESS MEN'S ASSURANCE, DefendantFederal-Mogul Corporation and T & N, Ltd., AppellantsState of Missouri, Respondent.

No. SC 83727.

Supreme Court of Missouri, En Banc.

July 23, 2002.

Thomas B. Weaver, Cynthia A. Sciuto, St. Louis, Terry L. Karnaze, Kansas City, KS, for Appellants.

Louis C. Accurso, Steven D. Steinhilber, Kansas City, Edward D. Robertson, Jr., Anthony L. DeWitt, Jefferson City, for Respondent Hoskins.

Jeremiah W.(Jay) Nixon, Atty. Gen., Charles W. Hatfield, Assistant Attorney General, James R. Layton, State Solicitor, Jefferson City, for Respondent State of Missouri.

PER CURIAM.

Forest Hoskins worked as an operating engineer in a building owned by Business Men's Assurance.He alleges he contracted mesothelioma, a form of cancer.He filed suit, with his wife, claiming the disease resulted from exposure to asbestos dust.The jury awarded compensatory and punitive damages, and judgment was entered accordingly.

On appeal, no party sought to defend the validity of section 537.675.¹The attorney general, representing the state, was permitted to intervene for that purpose.The validity of a statute is involved in the case.This Court has jurisdiction.Mo. Const. art. V, sec. 3.The statute is constitutional.The case is transferred to the Court of Appeals, Western District, for resolution of the other issues raised on appeal.

Resolution of this portion of the appeal does not require an extensive discussion of the facts.A fire retardant, consisting of 60% asbestos fibers, 38% Portland cement, and 2% mineral oil, was applied to the structural steel of the BMA building during its construction in the early 1960s.Approximately 15 years later, Forest Hoskins began working as an operating engineer at the building.He continued employment until 1999.He came into contact with the fire retardant during his employment.In 1999he was diagnosed as having demoplastic mesothelioma, a form of cancer associated with exposure to asbestos.Hoskins and his wife sued on various theories alleging a causal relationship between exposure to the retardant and his illness.The jury returned verdicts for actual and punitive damages for both Hoskins and his wife.

Section 537.675 authorizes the state to assert a lien on 50% of any final judgment for punitive damages.²The appellants contend on appeal that this section violates (1) the eighth amendment of the federal constitutionandarticle I, section 21 of the state constitution(the excessive fine claim) and (2) the takings clauses of both constitutions.The state contends that these issues were not timely raised in the trial court.³

As noted in Call v. Heard,925 S.W.2d 840, 847(Mo. banc 1996)(citations omitted):

Generally, constitutional issues must be raised at the earliest opportunity if they are to be preserved for review.This is necessary in order to prevent surprise to the opposing party and to allow the trial court the opportunity to identify and rule on the issue.The record herein reflects that the issue of punitive damages did not enter the case until the day of trial, at which time the Calls made their initial request for the award of punitive damages.Heard raised his constitutional due process challenge of the award in his motion for new trial.Plaintiffs had the opportunity to respond and the trial court had the opportunity to address the issue; thus the purposes of the rule were met.

In this case, in identical language in their first response to the petition, each appellant asserted that the claim for punitive damages violated the federal and state constitutions in numerous respects.The motions noted that the claims were without limitation to additional claims that might be raised.In the motion for new trial, the specific claims raised on appeal were raised.As in Call v. Heard, in this case, "Plaintiffs had the opportunity to respond and the trial court had the opportunity to address the issue; thus the purposes of the rule were met."⁴

An act of the legislature approved by the governor carries with it a strong presumption of constitutionality.This Court will resolve doubts in favor of the procedural and substantive validity of an act of the legislature.Hammerschmidt v. Boone County,877 S.W.2d 98, 102(Mo. banc 1994).

The excessive fines claim of appellants is based, in part, on their reading of Browning-Ferris Indus. Of Vermont, Inc. v. Kelco Disposal Inc.,492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219(1989).Such a reading is misplaced.That opinion specifically holds that the excessive fine provision of the eighth amendment"does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded."Id. at 264, 109 S.Ct. 2909.In that casethe Court did not decide what effect an award to the state would have.However, the case makes clear that the excessive fines clause is intended to constrain the power of the state."Simply put, the primary focus of the Eighth Amendment was the `prosecutorial' power, not concern with the extent or purposes of civil damages."Id. at 266, 109 S.Ct. 2909.

Under section 537.675, the state has no prosecutorial power.The statute makes clear that the state cannot intervene in the case.Section 537.675.3.Moreover, the state has no interest in the amount awarded as punitive damages until that amount is reduced to a final judgment.Section 537.675.2.The amount of punitive damages sought and reduced to final judgment is totally beyond the power of the state and is totally within the discretion of private parties to the suit.For the same reason, Austin v. United States,509 U.S. 602, 606, 113 S.Ct. 2801, 125 L.Ed.2d 488(1993), is inapposite.

Appellants' claim of a denial of due process with respect to the state's portion of the punitive damage final judgment is equally unavailing.Appellants raise no claim of a due process violation with respect to the Hoskinses' award of punitive damage.The state's share of that award is specified by statute, section 537.675.2.The state's award is wholly derivative of a final judgment.If that judgment does not violate due process, the state's share also is not subject to a due process attack by defendants who are liable for the full amount of the award regardless of the state having a lien on a portion of the judgment.⁵

Appellants fail adequately to develop their argument concerning the takings clause claim.They rely on Kirk v. Denver Publishing Co.,818 P.2d 262(Colo.1991)(en banc).This Court has...